THE GRIEVANCE PROCESS

THE GRIEVANCE PROCESS ELLEN EIDELBACH PITLUK Ethics Attorney State Bar of Texas P.O. Box 12487 Austin, Texas 78711-2487 Ethics Helpline (800) 532-3947 State Bar of Texas 5TH ANNUAL JOHN HUFFAKER AGRICULTURAL LAW COURSE May 19-20, 2011 Lubbock CHAPTER 13

ELLEN EIDELBACH PITLUK Ethics Attorney State Bar of Texas P.O. Box 12487 Austin, Texas 78711-2487 Ethics Helpline (800) 532-3947 Ellen Eidelbach Pitluk is an ethics attorney with the State Bar of Texas in the Office of Chief Disciplinary 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. Pitluk speaks frequently at continuing legal education events for TexasBar CLE and city and county bar associations. Her article, Is the Confidence Man Your Client? Con Artists Target Lawyers on the Internet, was published in 74 Tex. B.J. 80, 81 (2011). Ms. Pitluk received her law degree from St. Mary s University School of Law in December 2002. She became licensed in Texas in May 2003 and in the United States Western District of Texas in December 2003. Prior to joining the Office of Chief Disciplinary Counsel, Ms. Pitluk represented clients in private practice and volunteered as a mediator for the Bexar County Dispute Resolution Center and Hill Country Dispute Resolution Center for several years. She is a former member of the San Antonio Bar Association and San Antonio Bar Foundation. Ms. Pitluk is a member of the State Bar of Texas, Travis County Women Lawyers Association, College of the State Bar of Texas and American Bar Association. She enjoys volunteering for community-related service organizations in Austin.

TABLE OF CONTENTS I. TO GRIEVE OR NOT TO GRIEVE, THAT IS THE QUESTION... 1 A. No Standing or Privity Requirement... 1 B. Lawyer s Mandatory Duty to Report Misconduct or Fitness of Another Lawyer or Judge... 1 II. ONE SIDE OF THE STORY THE CLASSIFICATION PROCESS... 2 A. Classification... 2 B. Dismissal as an Inquiry... 2 C. Upgrade to a Complaint... 2 III. DEVELOPING THE STORY THE INVESTIGATION PROCESS... 3 A. Confidentiality... 3 B. Investigation... 3 C. Summary Disposition Panel A Second Chance for Dismissal... 3 D. Just Cause... 3 IV. TELLING THE STORY ADJUDICATION... 4 A. Procedural Rules... 4 B. Evidentiary Panel and a Proper Quorum... 4 C. Timeframes and Venue... 4 D. Published Case Law... 5 E. Appeal of an Evidentiary Judgment... 5 V. ENDINGS ARE THE HARDEST PART SANCTIONS... 5 A. Sanctions... 5 B. Grievance Referral Program... 7 C. Reinstatement... 7 VI. ANOTHER GENRE COMPULSORY DISCIPLINE... 7 A. Intentional Crime... 7 B. Pleas That Trigger Compulsory Discipline... 7 VII. APPENDICES... 8 APPENDIX A: RESOURCES... 9 APPENDIX B: FLOWCHART FOR PROCESSING A GRIEVANCE... 11 APPENDIX C: REGIONAL OFFICES FOR THE OFFICE OF CHIEF DISCIPLINARY COUNSEL... 12 i

THE GRIEVANCE PROCESS I. TO GRIEVE OR NOT TO GRIEVE, THAT IS THE QUESTION A. No Standing or Privity Requirement A grievance is defined as a written statement, from whatever source, apparently intended to allege Professional Misconduct by a lawyer, or lawyer Disability, or both, received by the Office of the Chief Disciplinary Counsel. 1 Consequently, any person or entity may file a grievance against a lawyer, who is licensed in Texas, regardless of standing or privity. The State Bar of Texas Office of Chief Disciplinary Counsel (CDC) receives approximately 7,000 grievances each year. 2 Because anyone can file a grievance and allege anything, whether or not the allegation involves a violation of the Texas Disciplinary Rules of Professional Conduct (TDRPC), roughly two-thirds of the grievances are dismissed; although, these figures vary annually. 3 A grievance which is dismissed is referred to as an inquiry. 4 A grievance that is upgraded for investigation is called a complaint. 5 B. Lawyer s Mandatory Duty to Report Misconduct or Fitness of Another Lawyer or Judge Rule 8.03 of the TDRPC addresses a lawyer s duty to report misconduct or fitness of another lawyer or judge. As Comment 1 to the rule notes: Selfregulation of the legal profession requires that members of the profession take effective measures to protect the public when they have knowledge not protected as a confidence 6 that a violation of these rules has occurred. Lawyers have a similar obligation with respect to judicial misconduct. 7 However, not every violation by another lawyer or judge falls under the reporting requirements of 8.03(a) & (b). Comment 4 emphasizes that the rule limits the reporting obligation to those offenses that a selfregulating profession must vigorously endeavor to prevent. Similar considerations apply to the reporting of judicial misconduct. A measure of judgment is, therefore required in complying with the provisions of this Rule. 8 Consequently, under the mandatory duty to report another lawyer or judge, the reporting lawyer needs to have: (1) actual knowledge of the prohibited behavior, which (2) raises a substantial question of either (a) the lawyer s honesty, trustworthiness or fitness as a lawyer; or (2) the judge s fitness for office. 9 The term substantial refers to the seriousness of the alleged misconduct and not the quantum of evidence of which the lawyer is aware. 10 For example, a lawyer who misuses his or her client s trust account funds would meet the definition of substantial, because of the resulting financial harm to the client and/or a third person, and the profession. 11 The term fitness is defined in the terminology preceding the TDRPC. Fitness denotes those qualities of physical, mental and psychological health that enable a person to discharge a lawyer s responsibilities to clients in conformity with the [TDRPC]. Normally a lack of fitness is indicated most clearly by a persistent inability to discharge, or unreliability in carrying out, significant obligations. 12 Rule 8.03(c) allows a lawyer to satisfy the mandatory duty to report a fitness issue, resulting from substance abuse or mental illness, by anonymously reporting the lawyer or judge to a peer assistance program, such as the Texas Lawyers Assistance Program (TLAP). 13 The name of the person who reports another lawyer or judge is kept confidential. 14 8 Id. 8.03 cmt. 4 (emphasis added). 9 Id. 8.03(a)-(b). 1 Tex. R. Disciplinary P. 1.06 (R). 2 Source: State Bar of Texas Attorney Grievance System Statistics (2010). An average of 7,031 grievances were received over the past seven years, beginning with the State Bar of Texas fiscal year, June 1, 2003-May 31, 2004 to June 1, 2009- May 31, 2010. 3 Id. An average of 4,927 grievances were dismissed in the time period described in FN2, based on a total average of 7,031 less an average of 2,104 grievances classified as complaints. (7,031-2,104 = 4,927 inquiries.) 4 Tex. R. Disciplinary P. 1.06(S). 5 Tex. R. Disciplinary P. 1.06(G). 6 See Tex. Disciplinary R. Prof l Conduct 8.03(d); 1.05(c)(2) [client may consent to reveal confidences]. 7 Id. 8.03 cmt. 1 (emphasis added). 1 10 Id. 8.03 cmt. 4 (emphasis added). 11 See generally Neely v. Comm n for Lawyer Discipline, 302 S.W.3d 331 (Tex.App.-Houston [14 th Dist.] 2009, pet. denied); Onwuteaka v. Comm n for Lawyer Discipline, 2009 WL 620253 (Tex.App.-Houston [14 th Dist.], pet. denied); McIntyre v. Comm n for Lawyer Discipline, 247 S.W.3d 434 (Tex.App.-Dallas 2008, pet. denied); Brown v. Comm n for Lawyer Discipline, 980 S.W.2d 675 (Tex.App.-San Antonio 1998, no pet.); and Fry v. Comm n for Lawyer Discipline, 979 S.W.2d 331 (Tex.App.-Houston [14 th Dist.] 1998, pet. denied). 12 Tex. Disciplinary R. Prof l Conduct Terminology. 13 Id. 8.03(c) & Cmt. 5. 14 Tex. Health & Safety Code 467.005 (Vernon 1989 & Supp. 1997), 467.007(a) (Vernon 1989 & Supp. 1991). See generally http://www.texasbar.com/am/

(See Appendix A for a list of organizations which handle reporting requirements.) II. ONE SIDE OF THE STORY THE CLASSIFICATION PROCESS A. Classification The story begins with a written grievance. The grievance is only one side of the story about an individual lawyer, but it is the crux of how long the story continues. The screening of a grievance to determine whether or not it alleges a violation of the disciplinary rules is called, classification. Lawyers at the CDC in Austin classify all of the grievances for the state within 30 days of receipt. 15 B. Dismissal as an Inquiry A grievance classified as an inquiry may be appealed by the complainant to the Board of Disciplinary Appeals (BODA) within 30 days from receipt of notice of the CDC s determination. 16 The respondent lawyer will also receive a notice from the CDC, explaining that a grievance was filed and was classified as an inquiry, and the complainant has a right to appeal. Respondent is also provided a copy of the dismissed grievance. If the complainant appeals and BODA affirms the inquiry, the decision is final. 17 The CDC refers inquiries to the State Bar of Texas Client- Attorney Assistance Program (CAAP) for voluntary dispute resolution. 18 In the 2009-10 bar year, BODA affirmed 89 percent of the appeals of CDC classification decisions it received as inquiries. 19 Subsequent grievances by the same complainant alleging the same misconduct are classified as res judicata. Inquiries are treated as confidential by the CDC, which cannot disclose them to persons requesting such information. However, the CDC may disclose inquiries to authorized agencies or committees and law enforcement as described in Rule 6.08 of the Texas Rules of Disciplinary Procedure (TRDP). 20 The lawyer, who was the subject of an inquiry, does not Template.cfm?Section=Texas_Lawyers_Assistance_ Program. 15 Tex. R. Disciplinary P. 2.10. 16 Id. 17 Id. 18 Id. 19 2009-2010 ST. B. OF TEX. COMMISSION FOR LAWYER DISCIPLINE ANN. REP. 16. 20 Tex. R. Disciplinary P. 6.08 (amended 2009). 2 have to disclose the dismissed grievance. 21 Complainants, on the other hand, may disclose it. 22 C. Upgrade to a Complaint If BODA reverses the CDC s dismissal, the grievance becomes a complaint. 23 A complaint is any grievance that is upgraded for investigation during the classification process or any inquiry that is reversed on appeal. 24 Both the complainant and respondent are notified that the grievance has been classified as a complaint. 25 The respondent receives a copy of the complaint with a demand to respond in writing to the CDC within 30 days of receipt of the notice. 26 The importance of a respondent preparing a wellwritten response (essentially a rebuttal) with supporting evidence cannot be understated. In fact, the failure to provide any kind of written response to the CDC violates TDRPC 8.04(a)(8). 27 Lawyers have been disciplined for a failure to respond even when the underlying disciplinary case may have been proper for dismissal by a summary disposition panel. The lesson here is for the lawyer not to be too proud, too busy, or too lazy to respond; even if the complainant was the worst client in the universe. A respondent should never ignore a demand by the CDC for a written response to a complaint. The CDC has to conclude its investigation in 60 days or less from the deadline for the respondent s written response. 28 In addition, the complainant becomes a fact witness, because the party prosecuting the complaint is the Commission for Lawyer Discipline (Commission). 29 The Commission is the CDC s client and gives the CDC the authority to pursue appeals and agree to settlements. 30 21 Tex. Gov t Code 81.072(o) (Vernon 1987 & Supp. 1991, 2001, 2003); and Tex. R. Disciplinary P. 2.16 (amended 2009). But see Tex. Disciplinary R. Prof l Conduct 8.04(a)(3). 22 Tex. R. Disciplinary P. 2.16. 23 Id. 2.10. 24 Id. 25 Id. 26 Id. 27 Tex. Disciplinary R. Prof l Conduct 8.04(a)(8). See also 8.04(a)(1). 28 Tex. R. Disciplinary P. 2.12. 29 Id. 30 Id. 4.06(A); Tex. Disciplinary R. Prof l Conduct 1.02(a).

III. DEVELOPING THE STORY THE INVESTIGATION PROCESS A. Confidentiality The treatment of a complaint is confidential during the classification and investigation phases. 31 Confidentiality continues if just cause is found and the disciplinary case is adjudicated by an evidentiary panel. Even though the evidentiary hearing process is confidential, records to the proceeding become publicly accessible once a respondent receives a public sanction. 32 Public sanctions include a public reprimand, suspension, disbarment and resignation in lieu of discipline. 33 If a respondent receives a private reprimand, the records will remain confidential. 34 Of course, if a respondent chooses to have his or her case heard in district court by a visiting judge, it is not confidential. 35 B. Investigation A CDC investigator and administrative attorney, who are assigned to a particular complaint, begin the information-gathering process. The investigation typically includes talking with witnesses, complainant(s) and respondent; reviewing the respondent s written response; researching court files; and obtaining other information. At the conclusion of the investigation, a finding must be made of whether just cause exists to prosecute respondent for professional misconduct. 36 C. Summary Disposition Panel A Second Chance for Dismissal If there is no finding of just cause, the CDC must request a summary disposition panel (SDP) to review the complaint. 37 Venue for a summary disposition is in the county where the alleged misconduct occurred, if it occurred in Texas. 38 Otherwise, venue is in the county where the respondent resides or, in the alternative, in Travis County. 39 The SDP meets without the presence of complainant, respondent or witnesses. 40 If the SDP agrees with the CDC s finding, it will dismiss the 31 Tex. R. Disciplinary P. 2.16. 32 Id. 2.16(A)(2). 33 Id. 1.06(Y); and 2009-2010 ST. B. OF TEX. COMMISSION FOR LAWYER DISCIPLINE ANN. REP. 20-22. 34 Id. 2.16(E); and 20. 35 Tex. R. Disciplinary P. 3.02. 36 Id. 1.06(U); 2.12. 37 Id. 2.13. 38 Id. 2.11(A). 39 Id. 40 Id. 2.13. 3 complaint as an inquiry. 41 A complaint dismissed by the SDP is final and cannot be appealed by the complainant. 42 During the 2009-10 bar year, 97 percent of the cases presented for summary disposition were dismissed. 43 However, the SDP may vote to proceed to just cause based on its own analysis of the evidence. 44 D. Just Cause The TRDP define just cause to mean: such cause as is found to exist upon a reasonable inquiry that would induce a reasonably intelligent and prudent person to believe that an attorney either has committed an act or acts of Professional Misconduct requiring that a Sanction be imposed, or suffers from a Disability that requires either suspension as an attorney licensed to practice law in the State of Texas or probation. 45 When a determination of just cause is made, the respondent is notified in writing of: (1) the just cause finding, (2) the alleged rule violations, (3) the alleged acts or omissions leading to those violations, and (4) given a choice (or election) between the complaint proceeding to an evidentiary hearing or district court. 46 Respondent s election must be in writing and served upon the CDC no later than 20 days from the date the respondent received the just cause notification. 47 If respondent does not make an election, the complaint proceeds to an evidentiary hearing. 48 In the 2009-10 bar year, there were 453 just cause findings and less than 10 percent of respondents elected district court. 49 Respondents typically choose an evidentiary hearing, because it offers the possibility of receiving the lowest sanction, called a private reprimand, which is not available in district court proceedings. 50 Respondents, who do not make an 41 Id. 42 Id. 43 2009-2010 ST. B. OF TEX. COMMISSION FOR LAWYER DISCIPLINE ANN. REP. 18. 44 Tex. R. Disciplinary P. 2.13. 45 Id. 1.06(U). 46 Id. 2.14(D); 2.15. 47 Id. 2.15. 48 Id. 49 2009-2010 ST. B. OF TEX. COMMISSION FOR LAWYER DISCIPLINE ANN. REP. 19. 50 Id.; Tex. R. Disciplinary P. 2.16 & 3.10.

election, default to an evidentiary hearing. 51 Additionally, a trial in district court is public while an evidentiary hearing is confidential. 52 A respondent who elects district court may, of course, choose a jury or bench trial. 53 In either case, the Texas Supreme Court appoints an active district judge who does not reside in the respondent s administrative judicial district to preside over the case. 54 IV. TELLING THE STORY ADJUDICATION A. Procedural Rules Since approximately 90 percent of complaints are heard by an evidentiary panel of grievance committee members, this paper will focus primarily on evidentiary hearings. Trial in district court proceeds as any other civil case and the right to appeal is through the state appellate court system. Regardless of the adjudicatory setting, there are two sets of procedural rules that a lawyer, who is representing respondents or is a respondent, should be knowledgeable of: (1) the Texas Rules of Disciplinary Procedure (TRDP) and (2) the Texas Rules of Civil Procedure except as varied by the TRDP. 55 B. Evidentiary Panel and a Proper Quorum For an evidentiary panel to convene, it must have a properly constituted quorum of grievance committee members. 56 An evidentiary panel is typically made up of six grievance committee members, four of whom are Texas-licensed lawyers and two of whom are public members or nonlawyers. 57 All grievance committee members are volunteers. 58 In some respects, the reliance of the disciplinary system on volunteers is astounding. In 2009-10 bar year, a total of 399 dedicated lawyers and nonlawyers donated their time to serve as grievance committee members. 59 In addition, there are six lawyers and six public members who serve as volunteers on the Commission for Lawyer Discipline. 60 Even the appellate body, BODA, which has original and appellate jurisdiction over six types of disciplinary cases, is made up of twelve lawyers who volunteer their time. 61 A properly constituted quorum is the subject of TRDP and case law. 62 Generally, for every group of two lawyer members, there must be one public member on the evidentiary panel. 63 For example, if there are three lawyers present (which equal one grouping of two), there has to be one public member. 64 But if there are four lawyers present (which equals two groupings), there must be two public members present for the hearing to proceed. 65 The panel presiding over an evidentiary hearing must also have a majority of the members appointed to the panel be present in order to have a quorum. 66 Additionally, the quorum has to remain properly constituted during the entire evidentiary hearing. 67 As a result, a properly constituted quorum will (1) represent a majority of members appointed to the evidentiary panel (2) with the proper ratio of lawyer members to public members (3) during the entire proceeding. 68 C. Timeframes and Venue Fifteen days after the CDC receives the respondent s election (or the day following the expiration of the respondent s right to elect), the grievance committee chair must appoint committee members to an evidentiary panel. 69 Evidentiary panels 51 Id. 2.15. 52 Tex. R. Disciplinary P. 2.16. 53 Id. 3.01. 54 Id. 3.02. 55 Id. 1.02 ; 3.08(B) (emphasis added). 56 Id. 2.07; Allison v. Comm n for Lawyer Discipline, BODA Case No. 08-0705 (August 21, 2008) (interpreted a properly constituted quorum under TRDP 2.07 to mean, if there are only four members from the six-member evidentiary panel present during an evidentiary hearing, at least one of them must be a public member [e.g., 3 attorney members + 1 public member; or 2 attorneys + 2 public members]; Cafiero v. Comm n for Lawyer Discipline, BODA Case No. 37811 (May 10, 2007) [one public member left during the evidentiary hearing and there was no longer a properly constituted quorum]. BODA opinions are available at: http://txboda.org/. 57 Cafiero at 10-11. 58 Tex. R. Disciplinary P. 2.08. 4 59 2009-2010 ST. B. OF TEX. COMMISSION FOR LAWYER DISCIPLINE ANN. REP. 13. 60 Id. at 1-3; and Tex. R. Disciplinary Procedure 4.08. 61 2010 BOARD OF DISCIPLINARY ANN. REP. 1 & 5; but see TRDP 7.06. The six types of disciplinary cases are: (1) appeal of a CDC inquiry, (2) appeal of an evidentiary panel judgment, (3) reciprocal discipline [original jurisdiction], (4) compulsory discipline [original jurisdiction], (5) revocation of disciplinary probation [original jurisdiction], and (6) lawyer disability discipline [original jurisdiction]. 62 See generally Allison; and Cafiero. 63 Allison at 4-6. 64 Id. 65 Id. 66 Tex. R. Disciplinary P. 2.07. 67 Cafiero at 11-12, 14. 68 Supra note 62. 69 Tex. R. Disciplinary P. 2.17.

usually are in six-member or three-member panels, depending on the size of the committee. 70 Venue is in the county where respondent s principal place of practice is maintained; or in the alternative, the county where respondent resides. 71 Other venue choices may include the county where the professional misconduct allegedly occurred if respondent does not maintain a place of practice or residence; or, in some cases, Travis County. 72 The CDC has 60 days from receipt of the respondent s election (or the deadline for election if no election is made) to file its evidentiary petition with the evidentiary panel. 73 Respondent s deadline to file an answer is 5:00 p.m. on the first Monday following the expiration of 20 days after receiving service of the CDC s petition. 74 If Respondent does not timely file an answer, then a default is entered and the evidentiary panel conducts a hearing on sanctions. 75 An evidentiary hearing must be held no later than 180 days after the date the answer is filed, but no sooner than 45 days after each party receives notice of the hearing date (unless waived by all parties). 76 Either party may serve a request for disclosure upon the other within 30 days before the first setting of the evidentiary hearing. 77 A party has to provide a written response to the request within 30 days after receiving service. A failure to respond to the request for disclosure may prevent the party from introducing witnesses or evidence that was not disclosed in the enumerated list provided in TRDP 2.17(D). 78 In addition, the parties may not raise an objection or assertion of work product in order to avoid a request for disclosure. 79 TRDP 2.17(E) outlines a limited discovery plan and states that the discovery period begins when the evidentiary petition is filed and continues until 30 days before the day of the evidentiary hearing. 80 Although the evidentiary hearing is less formal than a district court trial, it is similar in many ways to other civil cases. 81 The evidentiary panel must issue a judgment within 30 days of the hearing. 82 The judgment must include findings of fact, conclusions of law and the sanction to be imposed. 83 At the conclusion of the evidentiary hearing, the evidentiary panel may: (1) find that professional misconduct occurred and impose sanctions; or (2) dismiss the case; or (3) find that the respondent suffers from a disability and forward that finding to BODA. 84 For a complete set of procedural deadlines, the lawyer should consult the TRDP. (See Appendix A for online links to the TRDP.) D. Published Case Law Case law regarding Texas disciplinary cases may be found in the Southwest Reporter, Federal Reporter, and at the Board of Disciplinary Appeals web site at http://www.boda.org/. E. Appeal of an Evidentiary Judgment All appeals from an evidentiary hearing go to BODA. 85 The notice of appeal must be filed within 30 days after the date of the evidentiary judgment. 86 However, when a motion for a new trial or a motion to modify the judgment is filed, the deadline to file the notice increases to 90 days. 87 Appeals are reviewed under the substantial evidence standard. 88 In addition, BODA promulgates its own procedural rules for the parties to follow. 89 An appeal from BODA is to the Texas Supreme Court. 90 V. ENDINGS ARE THE HARDEST PART SANCTIONS A. Sanctions Both the evidentiary panel and the district court judge may, at their discretion, hold bifurcated hearings on sanctions when professional misconduct is found. 91 70 Id. 2.06-2.07; and Cafiero at 10-11. 71 Tex. R. Disciplinary P. 2.11(B). 72 Id. 73 Id. 2.17(A). 74 Id. 2.17(B). 75 Id. 2.17(C). 76 Id. 2.17(O). 77 Id. 2.17(D). 78 Id. 79 Id. 80 Id. 2.17(E). 5 81 Id. 2.17(F)-(N). 82 Id. 2.17(P). 83 Id. 84 Id. 85 Id. 2.24. 86 Id. 87 Id. 88 Id. 89 Id. 90 Id. 2.28 & 7.11. 91 Id. 2.18 & 3.10.

Some of the factors that the trier of fact must consider when imposing sanctions (in no particular order) are: nature and degree of the professional misconduct committed by respondent, for which he or she is being sanctioned seriousness of and circumstances surrounding the professional misconduct loss or damage to the client damage to the profession assurance that those who use legal services in the future will be insulated from the type of professional misconduct found profits to the attorney avoidance of repetition deterrent effect on others maintenance of respect for the legal Profession conduct of respondent during the Proceeding respondent s disciplinary record, including any private reprimands 92 Sanctions may range from a private reprimand to disbarment. 93 A respondent who faces a sanction as serious as disbarment may choose to resign in lieu of discipline. 94 In addition, the respondent may be ordered to pay restitution to the complainant and attorney s fees to the CDC. 95 A private reprimand is the lowest sanction, followed by a public reprimand. Next are suspensions, followed by disbarment. Any sanction, other than a private reprimand, is considered a public sanction. 96 There are several types of suspensions that may be imposed as sanctions. 97 A suspension can be active, probated, or partially probated. When a lawyer has an active suspension (formally called, suspension for a term certain), he or she cannot practice law. 98 A probated suspension allows the lawyer to practice law and is the equivalent of the lawyer being on probation. 99 A partially probated suspension is a hybrid between an active suspension and a probated suspension, because the first part of the suspension is active and the lawyer cannot practice law. 100 If the lawyer violates a disciplinary rule while on a probated suspension or partially probated suspension, he or she is subject to revocation. 101 An order granting a motion to revoke turns the entire suspension into an active suspension without any credit for time the respondent has already served during the probated period, essentially restarting the suspension period. 102 Revocations of evidentiary judgments are heard by BODA. 103 However, a motion to revoke probation of a district court judgment is filed with the district court, which has continuing jurisdiction until the suspension ends. 104 Other suspensions include an immediate interim suspension when the CDC can show that irreparable harm will occur to clients or prospective clients if respondent is allowed to continue practicing law while the disciplinary case is being adjudicated. 105 A petition for an interim suspension is filed in a district court of proper venue. 106 Another type of suspension is an indefinite disability suspension, which only BODA can grant. 107 The TRDP define disability as any physical, mental or emotional condition that, with or without a substantive rule violation, results in the attorney s inability to practice law, provide client services, complete contracts of employment, or otherwise carry out his or her professional responsibilities to clients, courts, the profession, or the public. 108 BODA has the authority to hear motions for indefinite disability suspensions. 109 It will appoint a District Disability Committee (DDC) to receive evidence and determine whether respondent has a disability. 110 The DDC is comprised of one attorney, one medical doctor (or mental health care professional with a doctorate degree) and one public member. 111 100 Id. at 22. 101 Id. 2.23 & 3.13. 92 Id. 2.18 & 3.10. 93 Id. 1.06(Y), 2.19, 3.10 & 3.11; and 2009-2010 ST. B. OF TEX. COMMISSION FOR LAWYER DISCIPLINE ANN. REP. 20-24. 94 Tex. R. Disciplinary P. 10.05. 95 Id. 1.06(Y)(a)-(b); 2.17(P) & 3.09. 96 Id. 2.16(E). 97 2009-2010 ST. B. OF TEX. COMMISSION FOR LAWYER DISCIPLINE ANN. REP. 21-24. 98 Id. at 21 [suspension for a term certain]. 99 Id. [fully probated suspension]. 6 102 Id. 103 Id. 2.23. 104 Id. 3.13. 105 Id. 14.01. 106 Id. 107 Id. 12.01-12.02. 108 Id. 1.06(I). 109 Id. 12.02. 110 Id. 12.03-12.04. 111 Id. 12.02.

The DDC must certify a finding of disability to BODA, which enters an immediate order of suspension. 112 B. Grievance Referral Program Another possibility is that a respondent may qualify for a diversion program called the Grievance Referral Program (GRP) if the respondent s professional misconduct is minor. 113 The GRP only accepts cases after a finding of just cause. 114 Respondents must meet certain criteria to participate. 115 Some of the conditions for participation require that the alleged misconduct did not involve a misappropriation of funds, breach of fiduciary duty, dishonesty, fraud or misrepresentation. 116 Other requirements depend on the respondent s disciplinary history, if any. 117 If the respondent qualifies for GRP, his or her underlying disciplinary case will be suspended while the respondent completes the agreed GRP terms. 118 Assuming the respondent completes the program, then the complaint is dismissed. 119 If not, then the case proceeds. 120 C. Reinstatement After five years from the order of disbarment or entry of resignation in lieu of discipline, a lawyer may apply for reinstatement of his or her law license. 121 However, a lawyer who was disbarred or resigned in lieu of discipline (e.g., due to compulsory discipline discussed in section IV. below) must wait five years after completion of his or her criminal sentence, including any period of probation or parole, before applying for reinstatement. 122 Few lawyers apply for reinstatement, because among other requirements, they must retake and pass the Texas bar examination. 123 In the 2009-10 bar year, nine lawyers petitioned for 112 Id. 113 Policy Manual of the State Bar of Texas Board of Directors 6.09. 114 Id. 6.09.02 (A). reinstatement. 124 Two petitions were granted, two were denied and five are still pending. The requirements, procedure and consider-ations for reinstatement are listed in Part XI of the TRDP. VI. ANOTHER GENRE COMPULSORY DISCIPLINE A. Intentional Crime Lawyers do not always link the penal code with the disciplinary rules. But in fact, one of the quickest routes to disbarment, and in some cases suspension, is to commit an intentional crime. 125 Intentional crime is defined in TRDP 1.06(T). To understand the definition, one also has to read the definition for serious crime in TRDP(Z). It sounds confusing, but an intentional crime is either: (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. 126 A serious crime [in (1) above] 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. 127 Consequently, a lawyer may face compulsory discipline for a felony or misdemeanor, depending on the nature of the crime. All compulsory discipline petitions are heard by BODA and the record of conviction or order of deferred adjudication is conclusive evidence of the lawyer s guilt. 128 B. Pleas That Trigger Compulsory Discipline When a lawyer is convicted of an intentional crime, or accepts probation with or without an adjudication of guilt, he or she is subject to compulsory discipline. 129 The key is knowing whether the lawyer is being charged with an intentional crime as defined in the TRDP. If so, then a guilty plea or an order of deferred adjudication triggers compulsory discipline. 115 Id. 6.09.01. 116 Id. 6.09.02 (C) & (D). 117 Id. 6.09.02 (A) & (B). 118 Id. 6.09.02 (D) & (E). 119 Id. 6.09.02 (D). 120 Id. 6.09.02 (E). 121 Tex. R. Disciplinary P. 11.01. 122 Id. 123 Id. 11.06; and 2009-2010 ST. B. OF TEX. COMMISSION FOR LAWYER DISCIPLINE ANN. REP. 22. 7 124 2009-2010 ST. B. OF TEX. COMMISSION FOR LAWYER DISCIPLINE ANN. REP. 22. 125 Tex. R. Disciplinary P. 8.01-8.08. 126 Id. 1.06(T). 127 Id. 1.06(Z). 128 Id. 8.02-8.03. 129 Id. 8.01.

BODA has discretion to disbar or suspend the lawyer under the compulsory discipline rules; and may disbar a lawyer, who receives a fully probated sentence. 130 VII. APPENDICES APPENDIX A: RESOURCES APPENDIX B: FLOWCHART FOR PROCESSING A GRIEVANCE APPENDIX C: REGIONAL OFFICES FOR THE OFFICE OF CHIEF DISCIPLINARY COUNSEL 130 Id. 8.05-8.06; and Caballero v. Comm n for Lawyer Discipline, BODA Case No. 38821 (March 28, 2007). 8

APPENDIX A RESOURCES Reporting Misconduct or Fitness Fitness Issues Texas Lawyer Assistance Program Call (800) 343-8527 or (512) 427-1453 Information available at: http://www.texasbar.com and click on For Lawyers and scroll to Texas Lawyers Assistance Program and click again. Professional Misconduct of a Lawyer Office of Chief Disciplinary Counsel Misconduct of a Judge State Commission on Judicial Conduct Access a grievance form on the State Bar of Texas web site at http://www.texasbar.com and by clicking on For the Public, scroll down and click on How to File [a] Grievance ; or call (800) 427-1350 to request a form. Access complaint form on the State Commission on Judicial Conduct s web site at http://www.scjc.state.tx.us/ and click on Complaint Form link in the box on the left; or call (877) 228-5750 to request a form. Ethics Resources Texas Center for Legal Ethics and Professionalism Available at: http://www.txethics.org/ Note: TCLEP is the only web site in which the Texas Disciplinary Rules of Professional Conduct and Texas Rules of Disciplinary Procedure may be accessed individually without having to scroll through a large file attachment. Click on Rules at the top of the web page and follow the links. University of Houston Law Library Texas Ethics Reporter Available at: http://www.law.uh.edu/libraries/ethics/ Note: This web site has archived versions of former disciplinary rules. 9

Other Helpful Resources Board of Disciplinary Appeals (BODA) Case law from certain types of disciplinary proceedings, and rules promulgated by BODA. Available at: http://txboda.org/ Client Attorney Assistance Program (CAAP) CAAP is a voluntary dispute resolution service through the State Bar of Texas and may be used for fee disputes. Available at: http://texasbar.com and clicking on For the Public and scroll to Disputes with Your Lawyer and click. A Lawyer s Guide to Client Trust Accounts A guide to opening, managing and closing a lawyer trust account published by the State Bar of Texas. Available at: http://texasbar.com and clicking on For Lawyers and scroll to Resource Guides and click on Trust Accounts, which opens to a short introduction with the link to A Lawyer s Guide to Client Trust Accounts at the bottom. TexasBar CLE and Law Practice Management There are so many great free resources here, especially under the Law Practice Management link. Available at: http://texasbar.com. Look in the top left corner for a small link that says TexasBar CLE and click. On the left side of the TexasBar CLE page, click on Law Practice Management. 10

APPENDIX B FLOWCHART FOR PROCESSING A GRIEVANCE GRIEVANCE FILED WITH CHIEF DISCIPLINARY COUNSEL (CDC) INQUIRY (Dismissed) Complainant may appeal to Board of Disciplinary Appeals (BODA) BODA affirms BODA reverses COMPLAINT Just Cause Determination by CDC No Just Cause Determination by CDC CDC presents case to Summary Disposition Panel (SDP) (district grievance committee) for vote to dismiss or proceed Respondent notified of allegations and elects district court or evidentiary panel. Failure to elect: Evidentiary Panel SDP votes to proceed SDP votes to dismiss: No appeal Evidentiary Panel District Court Trial Professional Misconduct found Sanction imposed OR Dismissal Professional Misconduct found-sanction imposed OR Dismissal Commission or Respondent may appeal judgment to BODA Commission or Respondent may appeal judgment to state appellate court Client Attorney Assistance Program (CAAP) for voluntary dispute resolution BODA or state appellate court decision may be appealed to Supreme Court 11

APPENDIX C CDC REGIONAL OFFICES Austin, Texas Phone: (512) 427-1350, or (877) 953-5535 Fax: (512) 427-4169 Chief Disciplinary Counsel 1414 Colorado St. Austin, Texas 78701 Dallas, Texas Phone: (972) 383-2900 Fax: (972) 383-2935 Chief Disciplinary Counsel 14651 Dallas Parkway, Ste 925 Dallas, Texas 75254 Houston, Texas Phone: (713) 758-8200 Fax: (713) 758-8292 Chief Disciplinary Counsel 600 Jefferson, Ste 1000 Houston, Texas 77002 San Antonio, Texas Phone: (210) 208-6600 Fax : (210) 208-6625 Chief Disciplinary Counsel Federal Reserve Building 126 E. Nueva, Ste 200 San Antonio, Texas 78204 12