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Ethics: Sunset Legislation Changes the Disciplinary Landscape

Mon, 07/24/2017 - 10:25 -- admin25

by Jerry R. Hall

Earlier this year, the Texas Legislature passed new legislation extending the operations of the State Bar of Texas until the year 2029, as required by the Texas Sunset Act. But this legislation also contains significant changes to the attorney disciplinary system. When Senate Bill 302 takes effect on September 1, it will establish a new committee to review the disciplinary rules, alter the process for proposing changes to those disciplinary rules, and modify the existing disciplinary process for alleged violations.

Rule Proposals

State Bill 302 will establish a Committee on Disciplinary Rules and Referenda. S.B. § 10, 15. This committee will consist of seven attorneys and two non-attorneys, appointed by the President of the State Bar or the Supreme Court of Texas. Id.

This committee will consider requests for proposed revisions to the disciplinary rules. S.B. § 10. These requests may be submitted by the Bar’s board of directors, the Supreme Court of Texas, the Commission for Lawyer Discipline, the Texas Legislature, and petitions signed by at least 10 percent of the registered members of the Bar. Id.

Notably, a petition signed by at least 20,000 people—any 20,000 people—may also request initiation of the rule proposal process, as long as “51 percent, or 10,200 or more,” are Texas residents. Id.

Any proposed disciplinary rule must be approved by the Committee on Disciplinary Rules and Referenda, the Bar’s board of directors, the Bar’s members, and the Supreme Court of Texas before adoption. Id.

Sanction Guidelines

The Chief Disciplinary Counsel will propose sanction guidelines for adoption by the Supreme Court of Texas. S.B. 302 § 9. These guidelines will associate specific rule violations with a range of appropriate sanctions, including potentially aggravating and mitigating factors. Id.

Increased Investigative Power

The Chief Disciplinary Counsel will now have subpoena power during the investigation of grievances. S.B. 302 § 9.

The Bar will also be entitled to obtain criminal history record information maintained by the Department of Public Safety or obtained by the Board of Law Examiners. S.B. 302 § 12, 15; see also Tex. Gov’t Code § 411.001. The Bar will obtain such information for Bar members whose information is already on file. S.B. 302 § 15.

In order to identify discipline imposed on members of the State Bar of Texas by other states (e.g., an attorney licensed in multiple states who is disciplined by another bar association), the Chief Disciplinary Counsel will begin regular searches of the National Lawyer Regulatory Data Bank as well. S.B. 302 § 9.

The Chief Disciplinary Counsel will provide guidelines on self-reporting criminal offenses and disciplinary actions by bar associations in other states. S.B. 302 § 9.

Mediation, Settlements, and Investigatory Hearings

Certain allegations of misconduct were previously eligible for resolution through a voluntary mediation and dispute process. Tex. Gov’t Code § 81.072(e). Under the new legislation, this voluntary mediation and dispute resolution procedure will be eligible for each “minor grievance” referred by the Chief Disciplinary Counsel. S.B. 302 § 7.

The Chief Disciplinary Counsel will also develop a process for identifying complaints that are appropriate for settlement attempts or investigatory hearings prior to a trial request or placement on a hearing docket. S.B. § 9. The Chief Disciplinary Counsel will have statutory authority to “authorize a settlement at any time during the disciplinary process.” Id.

Public Sanctions Posted on Bar Profile Indefinitely

Previously, public disciplinary sanctions against an attorney would be displayed on the attorney’s profile on the Bar’s website for ten years. Tex. Gov’t Code § 81.115(b)(5–6).

Senate Bill 302 removes that ten-year cutoff. An attorney’s bar profile will not only display all public sanctions issued against an attorney, but provide links to the full text of the disciplinary judgment entering those sanctions. S.B. 302 § 11.

Barratry Analysis in Annual Report

The annual report from the Commission for Lawyer Discipline will now require information specifically relating to barratry and improper solicitation of clients. S.B. 302 § 8. This may lead to increased focus on those issues.

Some of these changes may aid in the resolution of some disciplinary matters. Other changes, such as the removal of the ten-year cutoff for displaying public sanctions on bar profiles, may not be welcomed by those individuals most directly affected. But the full effects of these statutory changes should continue to become apparent as the required processes are implemented.

Jerry R. Hall is an associate at Campbell & Associates Law Firm, P.C. and can be reached at jhall@cllegal.com.

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