Texas Disciplinary Structure and Composition

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2 Texas Disciplinary Structure and Composition

3 District Grievance Committees State Geographically Divided Into 17 Districts Coextensive with the Director Districts 387 Volunteer Members Serve on the 17 District Grievance Committees Composition: 2/3 Lawyers 1/3 Public Members

4 Grievance Committees (Cont.) State Bar Directors Nominate Annually at the Spring Meeting State Bar President Appoints Members Serve Three-Year Staggered Terms May Serve Two Consecutive Terms

5 Grievance Committees (Cont.) Committee Chairs Assign Members to Panels Which Either Evaluate Complaints or Conduct Evidentiary Hearings: Summary Disposition Panels Evidentiary Panels

6 Commission for Lawyer Discipline Twelve Member Permanent Committee Overseeing Discipline 6 Attorneys and 6 Public Members State Bar President Appoints Lawyers Supreme Court of Texas Appoints Public Members

7 Chief Disciplinary Counsel (CDC) Represents the Commission for Lawyer Discipline Investigates and Prosecutes Grievances Bar s Law Firm - Office has 91 Employees, including 34 Attorneys, 11 Investigators, and Other Support Staff

8 State Bar of Texas Disciplinary Process

9 Processing A Grievance Dismissed (Does Not Allege Professional Misconduct) Grievance filed with Chief Disciplinary Counsel (CDC) Classified as: Inquiry or Complaint Complaint

10 Inquiry (Dismissed) Complainant May Appeal to Board of Disciplinary Appeals (BODA) Complaint BODA Affirms: Decision Final BODA Reverses Client-Attorney Assistance Program (CAAP) for Voluntary Dispute Resolution

11 Complaint (Respondent Has 30 Days to Provide Rebuttal) Just Cause Determination by CDC Respondent Notified of Allegations and Elects District Court or Evidentiary Panel (20 Days) SDP Votes to Proceed No Just Cause Determination by CDC CDC Presents Case to Summary Disposition Panel for Vote Dismiss/Proceed SDP Votes to Dismiss: No Appeal

12 If Respondent Fails to Elect : Evidentiary Panel Respondent Notified of Allegations and Elects District Court or Evidentiary Panel Evidentiary Petition Filed: Factual Allegations Rules Violated Demands Respondent be Disciplined Evidentiary Panel or District Court Hearing Respondent Files Response Admitting or Denying Allegations Professional Misconduct Found Sanction imposed or Dismissal

13 Commission or Respondent May Appeal Judgment to BODA or State Appellate Court Decision May be Appealed to Supreme Court

14 Available Sanctions Private Reprimand Public Reprimand Probation of Suspension Partially-probated Suspension Active Suspension Disbarment

15 If You Receive a Grievance Notice Cooperate Respond on time & in writing to allegations to avoid violating Rules 8.01(b) & 8.04(a)(8) Candid & Honest- Be responsive and detailed enough to demonstrate that there has not been any misconduct on the lawyer s part Talk to Another Lawyer- Objectivity is difficult when the complaint is about yourself Diligence- Familiarize yourself with the claim made against you and the ethical rules that apply Hire Counsel- Lawyers that deal with grievance claims can help guide you through the process and ensure that you are proceeding correctly

16 Frequent Concerns Statute of Limitations- Under the Texas Rules of Disciplinary Procedure there is a 4 year statute of limitations on allegations of professional misconduct, except in cases which disbarment or suspension is compulsory Suspension of License- Under the Texas Rules of Disciplinary Procedure an attorney s license may be suspended if CDC believes attorney poses a threat of irreparable harm to clients or prospective client

17 Frequent Concerns Disbarment- Can last at least 5 years and only then may you petition to have your law license reinstated Malpractice Carrier- You will not be notified concerning any grievance claims filed against you. However most carriers require you disclose any grievance claims when applying for legal malpractice insurance

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19 Stealing a Client s Money Hypo 1: Attorney borrows money from a client s trust account to pay his rent for his law office. He knows he ll do work and get paid later so he considers it an advance. Does it matter if the amount taken by the attorney was $3.8 million? What if he returns the money and the incident was 15 years ago? Result: Disbarred or Not Disbarred? DISBARRED. Misapplication of fiduciary property is a 3 rd degree felony, an intentional crime under the Texas Rules of Disciplinary Procedure.

20 Sex with a Client Hypo 2: Attorney agrees to represent a prostitute in a DWI case and he agrees to accept payment for his services with payment of her services. Result: Disbarred or Not Disbarred? DISBARRED: But not because there was sex, but because the sex was prostitution which is illegal and an intentional crime of moral turpitude. Additionally, it is a conflict of interest.

21 Sex with a Client Continued Hypo 3: An attorney defends a man in a child support modification action. They fall in love during the representation and have sex. Result: Disbarred or Not Disbarred NOT DISBARRED If in Texas attempt to pass a modification to Rule 1.08 failed. DISBARRED in 19 other jurisdictions there is a per se prohibition against sexual relations with clients. Some as conflict of interest, some as misconduct, and some as a prohibition in the Code of Professional Responsibility

22 Really????

23 Overzealous Representation Hypo 4: Attorney lies in an interrogatory response and fails to identify law which is dispositive but negative to his case. Result: Disbarred or Not Disbarred? NOT DISBARRED: Situation of lies in discovery and failure to cite the law correctly do not individually result in disbarment. Courts appear to pour out an attorney in such circumstances.

24 Prosecutorial Misconduct Hypo 5: Prosecutor intentionally fails to disclose evidence that sends an innocent man to prison. Result: Disbarred or Not Disbarred? DISBARRED: Ken Anderson, former prosecutor and judge, plead guilty to criminal contempt, lost his law license, will perform 500 hours of community services and spend 10 days in jail.

25 Underzealous Representation Hypo 6: Attorney fails to timely file a petition, fails to appear at duly-noticed court settings 4 times, and doesn t inform client of her change of address or return client calls or respond to correspondence. Result: Disbarred or Not Disbarred? DISBARRED but remember that this was cumulative behavior.

26 Hypo 7: Attorney Sleeps Through Trial. Result: Disbarred or Not Disbarred?

27 Since 1976, how many U.S. Presidents have been disbarred? A: 0 B: 2 C: 1 Answer: Richard Nixon from NY in 1976 & Bill Clinton from the U.S. Supreme Court in 2001.

28 Dying to experience the grievance system up close and personal? We can help!

29 Ten Surefire Ways to Get a Client Grievance Against You: 1. Accept any type of legal work 2. Don t worry about conflict of interest 3. Don t return your client s calls or communicate about key deadlines and developments 4. Don t agree on fees in advance

30 Ten Surefire Ways to Get a Client Grievance Against You: 5. Borrow money from clients 6. Don t consult your client on settlement negotiations 7. Don t admit mistakes

31 Ten Surefire Ways to Get a Client Grievance Against You:

32 Ten Surefire Ways to Get a Client Grievance Against You: 8. Continue to represent the hard-to-please or reckless client 9. Engage in abusive behavior/language with a client

33 Ten Surefire Ways to Get a Client Grievance Against You: 10. Don t Take Care of Your Mental and Physical Health: You Are Superman or Wonder Woman!

34 General Obligation to Report Lawyers have a duty to report if have knowledge that : Another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects A judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judges fitness for office. Rule 803 (a)-(b), Texas Disciplinary Rules of Professional Conduct

35 General Obligation to Report Judges have an obligation to report or take other appropriate action, if have knowledge that: another judge has committed a violation of this Code that raises a substantial question as to the other judge s fitness for office a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects Canon 3(D), Texas Code of Judicial Conduct

36 Exceptions to Reporting Obligation You do not have to report if: You cannot do so without revealing privileged or confidential client information The problem is caused by chemical dependency or mental illness, and you report to an approved peer assistance program You should be cautious about reporting judges because: The disciplinary rules also state that lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory official or public legal officer, or of a candidate for election or appointment to judicial or legal office. Rule 803 (c)-(d), Texas Disciplinary Rules of Professional Conduct

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38 Attorney/Client Privilege Rule 8.03 Reporting Professional Misconduct.. (d) This rule does not require disclosure of knowledge or information otherwise protected as confidential information: (1) by Rule 1.05

39 Comment 5 5. A report to a disciplinary authority of professional misconduct by a lawyer should be made and processed in accordance with the Texas Rules of Disciplinary Procedure. Comparable reports to approved peer assistance programs should follow the procedures those programs have established. A lawyer need not report misconduct where the report would involve a violation of Rule 1.05 or involve disclosure of information protected as confidential by the statutes or regulations governing any approved peer assistance program. However, a lawyer should consider encouraging a client to consent to disclosure where prosecution of the violation would not substantially prejudice the client s interests. Likewise, the duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose past professional conduct is in question. Such a situation is governed by the rules applicable to the client-lawyer relationship.

40 How To Report Misconduct

41 Attorney Misconduct Office of Chief Disciplinary Counsel PO Box Austin, Texas (fax)

42 Judicial Misconduct State Commission on Judicial Conduct PO Box Austin, Texas (512)

43 Requesting an Ethics Opinion Professional Ethics Committee (PEC) - Provides advisory opinions concerning generalized ethics questions - Michelle Jordan, Attorney Liaison State Bar of Texas Office of Chief Disciplinary Counsel PO Box Austin, Texas 78711

44 Substance Abuse Help State Bar of Texas Texas Lawyers Assistance Program ( TLAP ) Local Support Group Austin, Texas Tuesdays at noon at Allan House

45 Hypothetical 1 Attorney A has case with Attorney B Attorney A observes unethical conduct on the part of Attorney B Attorney A does not report under Rule 8.03 Attorney B s client suffers harm as a result of Attorney B s unethical conduct Is Attorney A liable for any of the harm suffered by Attorney B s client?

46 Joe v. Two Thirty Nine Joint Venture, f/n 2: 145 S.W.3d 150 (Tex. 2004) In addition, we note that the Rules do not define standards of civil liability of lawyers for professional conduct. TEX. DISCIPLINARY R. PROF. CONDUCT PREAMBLE 15.

47 Dukes v. Philip Johnson/Alan Ritchie Architects, P.C., 252 S.W.3d 586 (Tex. App.- Ft. Worth, 2008) Because we have not found, nor has Dukes cited, any case law to show the contrary, we determine that professional negligence law has not yet been broadened to include the evaluation of professional codes of ethics in the determination of whether a duty is owed.

48 Survey Says: The Answer Appears to be No

49 Hypothetical 2 Attorney A has case with Attorney B Attorney A senses that Attorney B has lost his/her abilities and, although not acting unethically, is not providing effective representation to his/her client Should Attorney A report Attorney B to: a. the State Bar; b. another lawyer in Attorney B s firm; or c. anyone else?

50 Survey says:???

51 What Happens Now? Post-Disbarment

52 Dallas, Texas, October 22, Since 1885 Disbarred Dallas civil attorney Tom Corea on trial for stealing from clients A disbarred civil attorney accused of stealing from dozens of clients is on trial this week in a Dallas County courtroom. Thomas Corea pleaded guilty to three charges of stealing from clients and has another six cases pending. Corea faces up to life in prison but could also receive probation because he has no criminal record State District Judge Mike Snipes this morning began hearing testimony to help him decide Corea's punishment and what restitution is owed. Although Corea pleaded guilty to three charges, Snipes is hearing testimony from other victims, as well. Corea's attorneys, John Helms and Janie Martin, disagree with prosecutors Jacob Harris and Donna Strittmatter about how much money was stolen. The amount was at least hundreds of thousands of dollars but could reach a few million.at issue is whether Corea is still entitled to an

53 12/07/2012 TOM COREA S WIFE ATTACKED HIS MISTRESS, RAMMED HER CAR THROUGH A GARAGE Because the Tom Corea saga just wasn't train-wrecky enough, we bring you another dispatch from Ellis County, where, if you'll recall, Corea was recently indicted for attacking his wife and interfering with a 911 call. This incident occurred on October 28, 2011 and involves Corea's wife, 41-year-old Jennifer Corea. According to a Waxahachie PD incident report and a probable cause affidavit filed in Ellis County, Jennifer Corea took a trip that afternoon to the Waxahachie home of her husband's mistress. The idea was to confront the woman, who is not identified in the affidavit and who Waxahachie PD spokesman Lt. Todd Woodruff declined to name in summarizing the police report, THE DALLAS OBSERVER which is exactly what Corea did. According to a Waxahachie PD incident report and a probable cause affidavit filed in Ellis County, Jennifer Corea took a trip that afternoon to the Waxahachie home of her husband's mistress. The idea was to confront the woman, who is Corea, cont. not identified in the affidavit and who Waxahachie PD spokesman Lt. Todd Woodruff declined to name in summarizing the police report, which is exactly what Corea did. According to the affidavit, Corea forced her way into the woman's home, where a fight ensued. The mistress was eventually able to force Corea out of the house, at which point Corea hopped in her SUV, backed it across the street, and gunned it. The SUV smashed into the back of the mistress' car, sending it through the closed garage door. Police estimated the damage at $15,000. Corea was arrested and charged with criminal mischief over $1,500

54 THE DALLAS OBSERVER DALLAS NEWS & EVENTS - Since 1980 Disbarred Attorney Tom Corea Likes Hookers, Hates Jail Pudding and Once Stole $386,000 from a Senile Grandfather Tom Corea, the disbarred Dallas attorney charged with stealing hundreds of thousands of dollars from clients, is currently in the Lew Sterrett Justice Center, where he's spent every day since a judge learned in November that he'd covered his former Design District office with penis graffiti. He'll be there at least through mid-october, when his trial is scheduled to begin. The number of felony counts Corea will be tried on is now up to nine, prosecutors having tacked on an additional five charges to the initial indictment earlier this year. But even that is a small, small fraction of the crimes Corea is accused of committing. A few days ago, prosecutors filed a "notice of extraneous offenses," which is basically a list of illegal and/or improper things Corea isn't formally charged with but which might be brought up during his trial. There are 71.

55 THE DALLAS OBSERVER NEWS AND GOSSIP WORLD EXCLUSIVES TOM COREA GOT EVICTED, SO NATURALLY HE TORE THE PLACE UP AND LEFT PENIS ART ON THE WALL When attorney Tom Corea moved his now-defunct legal practice into a 10,000-square foot Design District warehouse a year ago, he wasted little time in adding the Corea touch. He installed ostentatious mahoganyand-marble counters; covered the sidewalk with a glued-on rubber tread; and, in several rooms, installed Hugh Hefner-caliber deep scarlet. He didn't get to enjoy his decorative flourishes for long, though. Corea was evicted from his Farrington Street office at midnight on Thursday after it became clear that Corea wasn't any better about paying his rent than about paying for anything else. Vana Margolese, a California-based attorney who owns the property with her husband, said Corea called after receiving the eviction notice and politely asked for

56 Texas Rules of Disciplinary Procedure

57 Reinstatement 3 general categories of persons formerly licensed: Disbarred attorneys; Attorneys who resigned in lieu of discipline; and Attorneys who voluntarily resigned NOT in lieu of any disciplinary matters. First two categories may apply after 5 years unless the applicant was debarred for conviction of or having been placed on probation without an adjudication of guilt for an Intentional Crime or a Serious Crime Wait time is 5 years following the date of completion of sentence, including any period of probation and/or parole

58 Judgment of Reinstatement from a State District Court Applicant has the burden of proof by a preponderance of the evidence Restitution Notice in the Texas Bar Journal Judgment shall direct the Board of Law Examiners to admit the petitioner to a regularly scheduled bar examination

59 Reinstatement After Indefinite Suspension Due to Disability The petitioner has the burden by a preponderance of the evidence, that the reasons for suspension no longer exist and that termination of the suspension would be without danger to the public and the profession. The Board of Disciplinary Appeals or the district court, as the case may be, may order the petitioner to be examined by one or more health care providers trained in the area for which the attorney was suspended. Timing: any time after suspension

60 Reinstatement After Indefinite Suspension Due to Disability An attorney suspended for 2+ consecutive years may be required by the Board of Disciplinary Appeals or the district court to obtain a passing grade on the MBE or take a prescribed course of study through a law school or through continuing legal education courses, or do both.

61 Client Options if Attorney Disbarred The attorney will generally be ordered to notify clients, and return files and unearned fees The client owns the file and is entitled to receive it if it is located in the attorney s former office or if the landlord has possession of the file. Obtain new counsel immediately

62 How Obtain Refund? If someone has been appointed or designated to sign checks on the attorney s trust account, request unearned fees from that person File a grievance with the Office of Chief Disciplinary Counsel. A former client of a disbarred attorney may be eligible for payment from the Client Security Fund.

63 ABA Commission on Ethics 20/20 On February 21, 2012, the ABA Commission on Ethics 20/20 drafted two resolutions on Technology, Confidentiality and Client Development that proposed amendments to ABA Model Rules of Professional Conduct.

64 WELCOME TO THE NEW AGE Rule 1.18 Duties to Prospective Clients Electronic communications give rise to prospective attorney-client relationships Rule 7.10 Communications Concerning a Lawyer s Services False & Misleading communications in advertising is still wrong Rule 7.20 Advertising Targeting Internet-based client development tools that lawyers use Rule 7.30 Direct Contact with Potential Prospective Clients What constitutes solicitations in the Internet age?

65 HOW TO PROTECT INFORMATION WHEN USING TECHNOLOGY Rule 1.0 Terminology Screening: A lock isn t good enough anymore Rule 1.1 Competence As it relates to technology Rule 1.4 Communication It just isn t about returning phone calls these days Rule 1.6 Confidentiality Reasonable Measurers

66 CLIENT DEVELOPMENT & CONFIDENTIALITY: Sources of Potential Problems 1 Client Development Client Confidentiality Social & Professional Networking Services Pay-per-Click Advertising Blogging & Discussion Forums Lawyer Websites Cloud Computing Online Data Storage (Mozy.com, Carbonite.com) Internet-based (AOL, Yahoo, Gmail) Software as a Service (SaaS) Lawyer-Controlled Technology Cell Phones Laptops Flash Drives Photocopiers

67 The Issues 2 Social & Professional Networking Blogging & Discussion Forums Ex Parte Contact (3.05) Lawyers Friending Judges (8.4(f)) Litigation Info. Gathering ( ) Lawyer-Client Relationships (1.18) Confidentiality (1.6) 1 st Amendment Multijurisdictional Practice (5.5) Uploading Client Related Docs. (1.6)

68 The Issues: Cloud Computing 3 Outsourcing Terms & Conditions Cyberinsurance Industry Standards

69 Defending Yourself In the matter of Betty Tsamis, Illinois Att y Regis. and Disciplinary Comm n No. 2013PR0095 (August 26, 2013) The Illinois Attorney Registration and Disciplinary Commission reprimanded a Chicago lawyer who responded to a negative client review on the attorney review site, AVVO, with a post that revealed confidential information. The client alleged in his review that the attorney had taken his case knowing he had little chance to prevail.

70

71

72 This is simply false. The person did not reveal all the facts of his situation up front in our first and second meeting. [sic] When I received When his I received personnel his file, I personnel discussed the file, contents I discussed of it with the him and contents informed of him it with that him he would and informed likely lose him unless that the he employer would chose likely not lose to contest the unemployment (employers sometimes do is [sic]). Despite knowing that he would likely lose, he chose to go forward with a hearing to try to obtain benefits. I dislike it very much I feel when badly my for clients him lose but but his I own cannot actions invent in positive beating facts up for a clients female when coworker they are are not what there. caused I feel the badly consequences for him but his own actions in beating up a female coworker are what caused the consequences he is now so upset about.

73 In the Matter of Sarah Peterson Herr A Kansas judicial panel ordered published censure for a research attorney for the Kansas Court of Appeals for tweets she made during a disciplinary hearing before the Kansas Supreme Court concerning a former Kansas Attorney General.

74

75

76 Herr later apologized and claimed she had no idea her posts were readable by all Twitter readers. The Court fired her.

77 In re Jess Raymond Gilsdorf, Illinois Att y Regis. and Displinary Comm n No. 2012PR00006 (June 4, 2013) The Illinois Attorney Registration and Disciplinary Commission suspended Gilsdorf for 5 months because he posted a video on YouTube. The prosecution provided the video to him in a pending criminal matter against his client. In the video, Gilsdorf s client is purportedly shown delivering drugs to a confidential source. The attorney posted the video in two parts with the title Cops Task Force Planting Drugs. Among other issues, the attorney was cited for breach of confidentiality rules for posting the video of his client without her consent and for misconduct that threatened the fairness of the proceeding.

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