DEALING WITH THE GRIEVANCE PROCESS

Transcription

1 DEALING WITH THE GRIEVANCE PROCESS ROBERT C. HINTON, JR. Robert Hinton & Assoc. P.C N. Central Expwy., Suite 810 Dallas, Texas (214) State Bar of Texas 40 TH ANNUAL ADVANCED CRIMINAL LAW COURSE July 21-24, 2014 Houston CHAPTER 5

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3 PROFESSIONAL BIOGRAPHY of ROBERT C. HINTON, JR. EDUCATION AND EMPLOYMENT: MEMBER: J.D., University of Houston, April, 73; Assistant Criminal District Attorney, Dallas County, Texas, April, 73 - August, 77; Partner, Burleson, Pate & Gibson, August, 77 - June, 92; Robert Hinton & Associates, P.C., June, 92 - present. State Bar of Texas; Dallas Bar Association; Texas Criminal Defense Lawyers Association (Director, , Officer , President ); National Association of Criminal Defense Lawyers; Dallas Criminal Defense Lawyers Association (former Director and Officer); Collin County Criminal Defense Lawyers Association; Tarrant County Criminal Defense Lawyers Association; Grayson County Criminal Defense Lawyers Association; Texas Trial Lawyers Association; U.S. Supreme Court. APPOINTMENTS AND HONORS: Member, State Bar Grievance Committee, (Vice-Chair); Special Assistant Disciplinary Counsel, Texas Commission for Lawyer Discipline, present; Member, State Bar College, present; Fellow, Dallas Bar Foundation, from inception to present; Life Fellow, Texas Bar Foundation. Listed in The Best Lawyers In America, Strathmore s Who s Who, Marquis Who s Who In The South and Southwest. Martindale-Hubble A-V rating, 1978 present. LICENSED TO PRACTICE BY AND BEFORE: State Bar of Texas; United States District Courts, Northern, Western, Southern and Eastern Districts of Texas, Western District of Louisiana; United States Court of Appeals, 5th District; United States Tax Court, United States Supreme Court. AREAS OF PROFESSIONAL ACTIVITY: Federal and State Criminal Defense; Representation of Lawyers and other Licensed Professionals in Disciplinary Actions; Personal Injury Litigation; General Civil Litigation; Frequent Continuing Legal Education Author and Speaker.

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5 TABLE OF CONTENTS EVOLUTION OF TEXAS LAWYER DISCIPLINARY SYSTEM... 1 SUNSET ADVISORY COMMISSION... 1 CURRENT DISCIPLINARY PROCEDURE... 1 PREVENTING THE DEMISE OF THE STATE BAR ACT... 1 CURRENT RULES OF DISCIPLINARY PROCEDURE; A SLOPE MORE SLIPPERY... 2 LIST OF PROFESSIONAL MISCONDUCT... 2 GENERAL SUMMARY OF GRIEVANCE PROCESS... 2 EVIDENTIARY PANEL PROCEEDINGS... 2 PROCEDURE... 3 SANCTIONS... 3 DETERMINATION OF SANCTIONS... 3 DISTRICT COURT ACTION... 4 SANCTIONS... 4 DISTRICT COURT REVOCATION PROCEDURE FOR PROBATED SUSPENSION... 5 COMPULSORY DISCIPLINE... 5 DEFINITION OF INTENTIONAL CRIME... 5 SUSPENSION, INTERLOCUTORY NATURE... 5 DISBARMENT... 6 RECIPROCAL DISCIPLINE... 6 INTERIM SUSPENSION... 6 PROCEDURE... 6 SUSPENSION... 7 RESIGNATION IN LIEU OF DISCIPLINARY ACTION... 7 REINSTATEMENT AFTER DISBARMENT OR RESIGNATION... 7 JUDGMENT... 8 LAWYER DISABILITY... 8 PROCEDURE... 9 DISABILITY PROBATION... 9 i

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7 DEALING WITH THE GRIEVANCE PROCESS EVOLUTION OF TEXAS LAWYER DISCIPLINARY SYSTEM At the time of the establishment by the Legislature of the State Bar of Texas in 1939, by the passage of The State Bar Act the Texas Supreme Court delegated the administration of lawyer discipline to the State Bar Board of Directors. The State Bar s stated purpose included maintaining the high standards of conduct by those granted a license to practice law. The lawyer disciplinary system has evolved over the years to best attempt to identify and appropriately sanction lawyers who have violated rules of ethics, but also to clear lawyers wrongfully accused of Professional Misconduct, all in a fair and effective way. The evolution of the lawyer disciplinary system has been heavily influenced by the Legislature s Sunset Advisory Commission. SUNSET ADVISORY COMMISSION The Texas Legislature created the Sunset Advisory Commission ( SAC ) to review all state legislative entities every 12 years in order to determine if each entity is meaningfully fulfilling its purposes. Under the Sunset Advisory Act, a State entity not reenacted by the legislature every 12 years ceases to exist. The SAC first began to review the State Bar of Texas just before the 1979 legislative Session, and again for each successive sixth Legislative Session, the next such Session being the one convening in The SAC has always been incredibly critical of the State Bar s lawyer disciplinary process, and has constantly complained to the State Bar and the Legislature that the State Bar Act should be Sunsetted. I have been involved in the lawyer disciplinary process since 1978, the year I first became a member of the Grievance Committee. I have witnessed firsthand the criticisms of the SAC, and the changes made in the lawyer disciplinary system by the State Bar in its attempts to dodge the Sunset Bullet. Many of these changes have improved the system, but some have made it overly cumbersome, difficult and expensive. The SAC continues to complain that the system is duplicative, ineffective and overly expensive. The cost to the State Bar of the disciplinary system in 1978 was approximately 5% of its cost today, in my view largely due to the SAC s threatening criticism over this period of Sunset Reviews. There may be many who share my view that the reason for the SAC s chronic, threatening criticism is that the Legislature wants the revenue generated by the State Bar to go into the Texas General Fund to be overseen by the Legislature, rather than into the State 1 Bar s General Fund over which the Legislature has no direct control. The sweeping changes to the lawyer disciplinary system since 1978 have resulted in a system with fewer volunteer participants and many more salaried participants. The procedure itself is far more complicated than ever before. It is no longer a disciplinary system to be navigated alone by a Respondent lawyer, so the system has become more expensive for him/her also. CURRENT DISCIPLINARY PROCEDURE Under current rules, a Grievance Complainant can be anyone, not just a client. There is no standing requirement. Failure to timely submit a written Response is itself Professional Misconduct, and can result in sanctions even if the underlying Grievance is found to be without merit. Far more strict time limits apply to both the Office of the Chief Disciplinary Counsel, (OCDC) and the Respondent lawyer. The Commission for Lawyer Discipline is the client of the OCDC. Authority for the OCDC to settle a Grievance matter is far more difficult to obtain, and much later in the process. The current process is very front-end loaded for the OCDC, whose investigators, disciplinary counsel and staff are required to spend considerably more time on each case. The volunteer Grievance Committee members play a frustratingly reduced role in the process. The Respondent and his lawyer have more territory to cover in less time. Just Cause of Professional Misconduct determinations are made by the OCDC without benefit of any hearing. The initial classification of allegations as either a Complaint, or an Inquiry no longer is done on a regional basis, but now is all centralized in Austin. Finally, the budget of the OCDC has been significantly cut, which has resulted in a smaller staff to cover the increased workload. This circumstance was brought about by the State Bar in an effort to convince the SAC and Legislature that the system is improving, therefore rendering Sunsetting in 2015 unwarranted. With its shortcomings, however, the current Texas Lawyer disciplinary process is light years ahead of where it will be should the Legislature succeed in doing away with the Texas State Bar Act, and take direct control over the Bar. PREVENTING THE DEMISE OF THE STATE BAR ACT Each lawyer should understand the dynamics of this serious threat to the State Bar Act, and become vocal and active in efforts to prevent the Legislature from taking control of the practice of law in Texas. We cannot allow for control of the State Bar of Texas to be stripped away from the Supreme Court by the Legislature. We must get involved for our own

8 professional good, as well as for the good of the citizens of Texas. CURRENT RULES OF DISCIPLINARY PROCEDURE; A SLOPE MORE SLIPPERY The current Texas Rules of Disciplinary Procedure represent radical changes in procedure for the Commission For Lawyer Discipline, as well as for Respondent lawyers. The current Rules resulted from a series of compromises between the Directors of the State Bar of Texas and the Sunset Review Commission of the Texas Legislative. Some of these changes here have been good, and some have been bad both for the Commission for Lawyer Discipline and/or the Respondent. Many professionals with experience in this area view the overall effect of the current Rules to be unnecessarily difficult, especially for the Office of the Chief Disciplinary Counsel. The purposes of this presentation are to point out the changes presented by the current Rules, explore their impact upon lawyer discipline in Texas, and chart the course for successful navigation through the process. Despite their several inequities, difficulties and deficiencies, the current Rules Of Disciplinary Procedure must not be allowed to demonstrate, or even suggest that the State Bar of Texas cannot most effectively discipline its members. For years, a goal of the Sunset Review Commission has been to Sunset the State Bar Act, and thereby place the legal profession under the direct control of the Texas legislature, rather than the Supreme Court. More than just a few professionals with experience in this area believe that the Sunset Review Commission s intention has been to show that the current Rules prove to be unworkable, and thereby further the Commission s incorrect contention that the State Bar of Texas cannot effectively police its own. Texas Lawyers must be mindful of this threatening reality, and strive to make the current system work as effectively, efficiently and equitably as possible. Although our current system of lawyer discipline is far from perfect, it is vastly better than any legislative alternative. LIST OF PROFESSIONAL MISCONDUCT 1. Acts or omissions by a lawyer, either individually or in concert with others, that violate Texas Disciplinary Rules of Professional Conduct. 2. Conduct that occurs in another state or in DC and results in the discipline in that jurisdiction, provided the conduct would also constitute professional misconduct Texas Rules. 3. Violation of any disciplinary or disability order or judgment. 4. Failure of a lawyer subject to a complaint or disciplinary proceeding to furnish information requested by the Committee, unless the lawyer asserts in good faith a privilege, or other legal ground for failure to comply. 5. Engaging in conduct constituting barratry. 6. Failing to comply with Texas Rules of Disciplinary Procedure relating to notification of a lawyer s cessation of practice. 7. Practicing law during any period of suspension, or when on inactive status. 8. Conviction of, or being placed on probation for a serious crime, with or without an adjudication of guilt. 9. Conviction of, or being placed on probation for an intentional crime, with or without an adjudication of guilt. 10. Disability inhibiting competence. GENERAL SUMMARY OF GRIEVANCE PROCESS 1. Complaint files a written statement alleging facts that may or may not constitute professional misconduct or disability. 2. If the Chief Disciplinary Counsel (CDC) determines facts show professional misconduct and/or disability, matter goes to Evidentiary Panel or District Court, as elected by respondent lawyer. Failure of respondent lawyer to timely elect, case goes to Evidentiary Panel. 3. Evidentiary Panel or District Court makes findings of fact and conclusions of law, and then either dismisses complaint or imposes sanction. 4. Appeal of Evidentiary Panel findings to Board of Disciplinary Appeals, then to Supreme Court. 5. Appeal of District Court findings as in other District Court actions. EVIDENTIARY PANEL PROCEEDINGS 1. Failure to elect District Court: If the respondent-lawyer does not elect to proceed in a district court, further proceedings will be conducted before an evidentiary panel. 2. Transfer of matter: District Grievance Committee (DGC) may transfer if necessary to insure a just and unbiased forum. 2

9 3. Appointment of evidentiary panel: Chair of DGC to which a matter is assigned must appoint a panel to conduct hearing. 4. Composition of Panel: Must be at least 3 members, but not more than half the number of members of DGC. Two-thirds of member s lawyers, one-third non-lawyers. 5. Client of CDC is Texas Commission For Lawyer Discipline, (CFLD). PROCEDURE 1. Evidentiary Petition: Written statement of formal charge against lawyer based on findings of Office of Chief Disciplinary Counsel (CDC), similar to civil court petitions. 2. Service of Evidentiary Petition: CDC must serve Evidentiary Petition on Respondent or by his counsel by certified mail. 3. Monday next after 20 days respondentlawyer must file responsive pleading, admitting or denying each allegation in Evidentiary Petition. Allegations not specifically denied are deemed admitted. 4. Pleadings may be amended accordingly to rules of Civil Procedures. 5. Hearing Date must be set within 180 days after time for respondent to file responsive pleading, but not sooner than 90 days. 6. Continuance may be granted if the interest of justice requires. 7. Compulsory process of witnesses: Lawyer & CDC may compel attendance of witnesses, enforceable by order of district court. 8. Complainant is not party to the Evidentiary Panel proceedings. 9. Only Respondent, his counsel, and CDC may present and cross examine witnesses. 10. Texas Disciplinary Rules of Procedure (TCRP) allows for discovery as provided in Rules of Civil Procedure, but limited. 11. Panel must admit all probative and relevant evidence deemed necessary for a fair and complete hearing. 12. Burden of Proof is upon the CDC, by preponderance. 13. Court Reporter must prepare verbatim record of proceedings. In event of an appeal, the party appealing must pay transcript preparation fees. 14. All Evidentiary Panel proceedings are closed to public. 15. Evidentiary panel must issue written findings of fact, conclusion of law, and sanction within 30 days after hearing concludes. An appeal must be made within 30 days of date 3 SANCTIONS of notice. Appeal is to Texas Board of Disciplinary Appeals, then to Supreme Court. 1. In its discretion, an evidentiary panel may conduct separate evidentiary hearing on appropriate sanction. 2. Available Sanctions: a) Disbarment b) Resignation in lieu of disbarment c) Suspension for a certain term d) Probated suspension, which may be concurrent with the period of suspension upon reasonable terms as are appropriate e) Interim suspension (pending final disposition of matter) if panel determines lawyer poses a substantial threat of irreparable harm to clients or prospective clients f) Public reprimand g) Private reprimand 3. Sanctions may also include restitution, and payment of reasonable attorneys fees and direct expenses associated with the proceedings. DETERMINATION OF SANCTIONS 1. In determining sanctions, the panel must consider: a. Nature and degree of professional misconduct. b. Seriousness and circumstance of misconduct. c. Loss of damage to client. d. Damage to profession. e. Assurance those seeking future legal service will be insulated from particular type of misconduct. f. Profit to the lawyer. g. Avoidance of repetition. h. Deterrent effect or panel s sanction on others. i. Public maintenance of respect for legal profession. j. Lawyer s conduct during course of disciplinary action. 2. In assessing sanctions, panel may consider lawyer s disciplinary record, including private reprimands. 3. Panel may not consider lawyer s disability due to use of alcohol or drugs as mitigating

10 circumstance unless the lawyer demonstrates he is successfully pursuing a program of recovery in good faith. 4. Restitution: If misconduct involved misappropriation of funds and lawyer is disbarred or suspended, the panel s judgment must require the lawyer to make restitution during period of suspension before any consideration of reinstatement from disbarment or suspension. 5. Violation of Probated Suspension: This may result in the revoking of probation. 6. Appeal may be taken by respondent-lawyer or CFLD. Complainant may not appeal, as not a party. Appeal is to Board of Disciplinary Appeals (BDA), and then to Supreme Court. DISTRICT COURT ACTION 1. Within 15 days of CDC s notification of just cause respondent lawyer may elect to have complaint heard before district court, with or without a jury, rather than evidentiary panel. 2. Disciplinary petition must be filed by CDC with the Texas Supreme Court Clerk in the name of CFLD. The petition must contain: a. Notice that the action is brought by the Commission. b. Lawyer s name, and the fact he s a lawyer licensed to practice law in Texas. c. Lawyer s residence and principal place of practice, or other allegations necessary to fix venue. d. Description of conduct giving rise to alleged misconduct. Factual allegations must be in detail sufficient to give lawyer fair notice of claims. Allegations may be grouped into one or more counts. e. Specific rules of the Disciplinary Rules of Professional Conduct that were allegedly violated, or other grounds for seeking sanctions. f. Demand that the lawyer be disciplined as warranted by the facts and for any other appropriate relief. g. Any other matter required or permitted by law or by the Rules of Disciplinary Procedure h. Texas Supreme Court must docket matter within 30 days. 3. Supreme Court must appoint an active district judge who does not reside in the administrative judicial region in which the 4 lawyer resides to preside over the case. If Judge is unable to fulfill appointment, he must notify the clerk of Supreme Court. 4. Appointed Judge is subject to recusal. In the event of recusal the Supreme Court must appoint a replacement Judge within 30 days. 5. After Judge is appointed, the Supreme Court Clerk must promptly forward disciplinary petition to district clerk of county of Respondent s principal place of practice. All proceedings must take place in that county. 6. Lawyer s answer to disciplinary petition is to follow the form of answers in civil cases generally. 7. Discovery is as in civil cases generally. The following are not discoverable: a. CDC or CFLD thought processes. b. Any communication to or from CDC that would be privileged in the case of private lawyer representing private litigant. 8. Trail by Jury may be requested by Respondent or CFLD. 9. Trial must be set no later than 180 days of date the respondent lawyer s answer due. No continuance, resetting or agreed pass may be granted unless demonstrated that interest of justice best be served. Respondent or CDC may petition for mandamus to enforce this rule. 10. Burden of Proof lies with CFLD by preponderance. 11. Trail court must promptly enter judgment after the close of evidence in non-jury trial, or after the return of the jury s verdict. SANCTIONS a. If no finding of professional misconduct, render judgment accordingly. b. If findings of professional misconduct, court shall make findings of fact, conclusions of law and determine appropriate sanction. 1. Same as for Evidentiary panel, except Private Reprimand not available. 2. Mandatory Considerations same as for Evidentiary Panel. 3. Permissive Considerations same as Evidentiary Panel. 4. Admissibility of disability same as Evidentiary Panel.

11 5. Terms of judgment: Court must order respondent lawyer to surrender law license and permanent State Bar Card to CDC for transmittal to Supreme Court clerk in any judgment in which disbarment or suspension is imposed and not stayed. 6. Restitution legal fees and costs - same as Evidentiary Panel. DISTRICT COURT REVOCATION PROCEDURE FOR PROBATED SUSPENSION 1. Jurisdiction of court: In cases in which a lawyer s suspension is fully or partially probated, the court retains jurisdiction during the full term of the suspension, including any probationary period, to hear a motion to revoke probation. 2. Motion to revoke probation: If CFLD moves to revoke probation, motion must be heard and determined within 30 days. 3. Burden of Proof: CFLD must prove by preponderance of evidence that lawyer has violated probation. 4. Finding of Probation Violation: Upon proof, the court must revoke lawyer s probation and suspend him for full term of suspension, without credit for probationary time served. 5. A District Court s judgment of disbarment or order revoking a lawyer s probation cannot be superseded or stayed. 6. If District Court finds lawyer s practice of law doesn t pose a continuing threat to the welfare of his clients/public, the court may stay his suspension during the pedency of any appeals. Burden of Proof on Respondent. 7. Cost and Appeal Bond: CFLD does not have to file a cost or appeal bond. 8. Appeal: The District Court s judgment may be appealed as in civil cases generally. COMPULSORY DISCIPLINE 1. CDC must initiate a disciplinary action seeking compulsory discipline of any lawyer convicted of or placed on probation for an intentional crime. DEFINITION OF INTENTIONAL CRIME 1. Any serious crime that require proof of knowledge or intent as an essential element. 2. Any crime involving misapplication of money or other property held as fiduciary, as barratry, any felony involving moral turpitude, any misdemeanor involving theft, 5 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. 3. Petition: CDC must initiate a compulsory discipline action by filing a petition with the Board of Disciplinary Appeals. A petition for compulsory discipline must allege: a. The adjudication of guilt, or probation without an adjudication of guilt, of the defined category of intentional crime. b. The lawyer is the same person as the party adjudicated guilty, or who received probation with or without an adjudication of guilt for the intentional crime. c. The appropriate discipline. 4. Board of Disciplinary Appeals must hear and determine all questions of law and fact for compulsory discipline. 5. Board of Disciplinary Appeals decision are reviewable by the Texas Supreme Court. SUSPENSION, INTERLOCUTORY NATURE 1. Intentional crime: A lawyer must be suspended during the appeal of the conviction or order of deferred adjudication probation of an intentional crime 2. Serious crime: If upon conviction of a defined category of intentional crime a lawyer s sentence is fully probated, or if he received probation through deferred adjudication, then the lawyer must be suspended during the term of probation. 3. Decision: Board of Disciplinary Appeals must determine whether lawyer has been convicted or granted probation of an intentional crime. 4. A record of conviction or order of deferred adjudication is conclusive evidence of a lawyer s guilt. 5. The CDC may use uncontroverted affidavits to prove that a lawyer is the same person as the person convicted or granted probation for an intentional crime. 6. Nothing in the Rules of Disciplinary Procedure prohibits proof of the necessary elements in a disciplinary action by competent evidence in any other manner permitted by law. 7. The BDA is to enter judgment on whether a lawyer should be disciplined within 45 days of the answer day, but failure of Board to

12 DISBARMENT enter judgment within that period doesn t affect the Board s jurisdiction to act. 1. In cases in which a lawyer is convicted of a defined category of intention crime and the conviction is final, or a lawyer has accepted probation, the BDA must disbar the lawyer, unless the lawyer has been suspended under TRDP If a lawyer was suspended during the appeal of his criminal conviction, the CDC must file a motion for final judgment of disbarment if appeal unsuccessful with BDA. 3. This must be granted without hearing or documents showing final conviction unless the convicted lawyer files a verified denial contesting the finality of judgment. Denial must be filed within 100 days following the service of CDC motion. Upon filing lawyer s denial the BDA must immediately conduct a hearing to determine the issue. 4. If no disciplinary action is pending at the time a lawyer s criminal conviction becomes final, disbarment must be initiated by filing a disciplinary action by CDC. RECIPROCAL DISCIPLINE 1. CDC must diligently seek to obtain a certified copy of the order of judgment from the other jurisdiction, and file it with the BDA when the CDC discovers Texas lawyer has been disciplined in another jurisdiction. 2. The CDC must file petition that lawyer also be disciplined in Texas. 3. A certified copy of an order or judgment from another jurisdiction is sufficient evidence of the matters contained therein. 4. When CDC files a petition, it must also send notice to lawyer containing: a. A copy of petition. b. A copy of the order or judgment from other jurisdiction. c. An order directing the lawyer to show cause why the imposition of the identical discipline in this state would be unwarranted. 5. A lawyer must answer showing cause within 30 days. It must contain one or more of the following defenses: a. That the procedure followed in the other jurisdiction on the disciplinary matter 6 was so lacking in notice or opportunity to be heard that it deprived the lawyer of due process. b. That there was infirmity of proof established misconduct in other jurisdiction to give rise to the clear conclusion on the evidence reached in other jurisdiction. c. That the imposition by BDA of discipline identical, to the extent practicable, with that imposed by the other jurisdiction would result in grave injustice. d. That the misconduct established in the other jurisdiction warrants substantially different discipline in Texas. e. That the misconduct for which the lawyer was disciplined in the other jurisdiction doesn t constitute professional misconduct in Texas. INTERIM SUSPENSION 1. If a lawyer is found to pose a substantial threat of irreparable harm to clients or prospective clients, he may be suspended. PROCEDURE 1. CDC must find that lawyer posed substantial threat of irreparable harm to client(s). 2. CDC, if authorized by BDA, must file petition in appropriate District Court. 3. If CDC s petition alleges facts that meet evidentiary standard, a court must set a hearing on lawyer s interim suspension within 10 days. 4. CDC must prove case by preponderance. 5. CDC must show one of the following: a. Conduct by lawyer included all elements of a serious crime. b. 3 or more acts of professional misconduct. c. Lawyer s failure to furnish information subpoenaed by CDC, unless lawyer asserted in food faith a privilege or other legal grounds for the failure. d. Any other conduct by the lawyer that, if continued, would probably cause harm to client(s). 6. If CDC demonstrates irreparable harm to lawyer s existing or prospective client(s) the court must immediately order suspension of the lawyer pending final disposition.

13 SUSPENSION 1. If district court enters a temporary injunction against a lawyer, it may appoint a custodian, as in matters involving a lawyer s cessation of practice 2. If lawyer is not found to have committed professional misconduct, an interim suspension may not be deemed a sanction for any purpose. RESIGNATION IN LIEU OF DISCIPLINARY ACTION 1. A lawyer may file with Supreme Court a motion to resign in lieu of disciplinary action. 2. Lawyer must file motion in form promulgated by the Commission for Lawyer Discipline, and must attach Texas law license and permanent State Bar membership card. 3. Motion to resign must be filed with Texas Supreme Court. 4. Motion is not effective until and unless accepted by written order of the Supreme Court. 5. Within 20 days CDC must file response including charge. 6. CDC must notify lawyer, chair of District Grievance Committee, Commission for Lawyer Discipline and Complainant (if any) of Supreme Court disposition of motion to resign. 7. Any motion will be treated as disbarment for all purposes. REINSTATEMENT AFTER DISBARMENT OR RESIGNATION 1. Any person who has been disbarred or has resigned in lieu of disciplinary action may petition for reinstatement no sooner than 5 years after final judgment date. 2. Petition must be filed in district court of county of petitioner s residence. 3. Petition must contain the following: a. Petitioner s name, age, and residential address. b. Offenses, misconduct, or convictions upon which disbarment or resignation was based. c. Name of the body or entity before which disciplinary action was adjudicated. d. Identity of District Grievance Committee before whom the just-cause hearing was held. 7 e. Statement that the petitioner has made restitution to all persons, if any, who may have suffered financial loss by reasons of the offenses, misconduct, or serious crimes for which the petition was disbarred or resigned. f. Names and current addresses of all person to whom restitution was made. g. Statement that the petitioner has paid all costs and fines assessed in connection with the petitioner s disbarment. h. Statement that at the time the petition was filed, the petitioner is of good moral character, possessed the mental and emotional fitness to practice law, and during 5 years immediately preceding the petition has been living a life of exemplary conduct. i. Statement that the petitioner has recently read and understands the Texas Disciplinary Rules of Professional Conduct and Texas Lawyer s Creed. j. Statement that the petitioner has current knowledge of law. k. Statement that the best interest of public and profession will be served by petitioner s reinstatement. l. List of petitioner s occupations from date of disbarment/resignation, including names and current addresses of all partners, associates and employers, if any, and the dates and duration of all such relationships and employment. m. List of all residences the petition maintained from date of disbarment/resignation and the current names and addresses of all landlords. n. Statement dates, cause numbers, courts, and general nature of all civil action in which petitioner was a party, or claimed an interest, and that were pending at any time from disbarment/resignation. o. Statement of dates, cause numbers, courts, and general nature and disposition of all matters pending at any time from date of disbarment/resignation, and involving the prosecution of the petitioner for any crime, felony, or misdemeanor, with the names and current addresses of all complaints in each matter. p. Statement whether petitioner filed any application for license requiring proof of good moral character for its procurement at any time after disbarment or resign, and for each

14 application, the name and address of licensing authority and application s disposition. q. Statement explaining any proceeding or inquiry, and the deposition of such, after date of disbarment/resignation concerning petitioner s standing as a member of any profession or organization or holder of any license of office that involved censure, removal, license suspension, license revocation, or discipline and name and address of each authority in possession of the records. r. Statement whether any allegations or charges, either formal or informal, of fraud were made or claimed against the petitioner s disbarment/resignation, and names and current addresses of the persons or entities making such allegations or charges. 4. Petitioner has a duty to amend and keep current all information in his petition until trial court has heard and determined the disposition of the petition. 5. Petitioner bears burden to prove, by preponderance of evidence, that best interest of public and the profession and the ends of justice will be served by petitioner s reinstatement 6. A trail court must deny any petition for reinstatement that contains any false statement of material fact. 7. Petitioner must serve notice of his petition for reinstatement on the Chief Disciplinary Counsel, and must publish notice as a paid classified announcement in the Texas Bar Journal. 8. Trial court will determine all matters of fact and law on a petition for reinstatement. 9. Court must consider following factors: a. Nature and degree of professional misconduct for which the petitioner was disbarred or resigned, and the circumstances of the offense or offenses. b. Petitioner s understanding of the serious nature of the acts for which he was disbarred or resigned. c. Petitioner s conduct during disciplinary actions. d. Profit to the petitioner and hardship to others. e. Petitioner s attitude toward the administration of justice and the practice of law. 8 JUDGMENT f. Any good works and other accomplishments by petitioner. g. Any other evidence relevant to the issues of the petitioner s fitness to practice law, and the likelihood that he will engage in further misconduct. 1. May be reinstated if: a. Court is satisfied after hearing all the evidence that the material allegations in petition are true. b. Court is satisfied that the best interest of the public and profession and the ends of justice will be served. 2. If reinstatement is granted, petitioner must, within 18 months, comply with Rule II of the Rules Governing Admission to the Bar of Texas. 3. Judgment must direct Board of Law Examiners to admit the petitioner to a regularly scheduled State Bar Examination in accordance with the Board s rules and procedure relating to the examination of persons who have never been licensed as lawyers in Texas or any other state. 4. No Judgment of reinstatement may be rendered by default. 5. Court may determine the petitioner is not eligible for reinstatement, or direct it to be held in abeyance for a reasonable period until the petitioner provides additional proof that he has satisfied the requirements of reinstatement. 6. Petitioner and CFLD each has the right to appeal. 7. Before being reinstated the petitioner must comply with the terms of the judgment against him, and must furnish the commission with a certified copy of the judgment and evidence of compliance. 8. In cases in which the petition was denied, the petitioner may not file another petition for another 3 years. LAWYER DISABILITY 1. Disability is defined 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 for employment, or otherwise carry out his or

15 her professional responsibilities to clients, courts, the profession, or the public. 2. Any Texas Lawyer may be suspended for an indefinite period upon a finding that he suffers from a disability. PROCEDURE 1. Finding a disability: If CDC suspects that lawyer suffers from disability, CDC must certify that finding and forward the entire record to the Board of Disciplinary Appeals. The Board appoints a District Disability Committee of 3 members; 1 lawyer, 1 MD or Psychologist and 1 Public. 2. BDA may appoint a lawyer to represent a suspected disabled lawyer s interest. 3. Upon receipt of the record the BDA forwards it to District Grievance Committee. 4. District Disability Committee must proceed in a de novo proceeding to review the evidence and determine whether a lawyer suffers from a disability a respondent-lawyer or his counsel must be given reasonable notice of a preliminary finding of disability and basis for finding. 5. Lawyer must be afforded an opportunity to appear before and present evidence to District Disability Committee. a. The Board may appoint a lawyer to represent the respondent, on request. b. On clear showing of good cause and substantial need, the District Disability committee may permit limited discovery. c. District disability committee may order the respondent to submit a physical/mental examination and failure to do so will cause finding of the local Grievance Committee to be final. d. CDC has burden of proof at trial preponderance. 6. If there is no finding of disability, committee must return entire record to District Grievance Committee for transmittal to BDA. 7. If there is a finding of disability, Committee must certify the finding to the Board of Disciplinary Appeals. 8. BDA must immediately enter an order suspending lawyer indefinitely. Records will be sealed and remain confidential, except to respondent-lawyer. 9. Indefinite suspensions are made public. 10. Statute of limitations is tolled during period of disability suspension. DISABILITY PROBATION 1. BDA or district court may order that the lawyer be placed on probation if the lawyer demonstrates: a. Ability to perform legal services and that the lawyer s continued practice of law will not cause the courts or profession to fall into disrepute. b. Unlikelihood of any harm to the public during the period of the lawyer s rehabilitation, and the adequate supervision of necessary conditions of probation. c. Lawyer suffers from a disability that can be successfully arrested and treated while he is engaged in the practice of law. 2. Whenever a lawyer s suspension is probated the BDA or district court must order probation for a specified period. 3. An order of probation must state the conditions of probation. Any of the following conditions may be imposed: a. Periodic reports to the Chief Disciplinary Counsel. b. Supervision over client trust accounts. c. Satisfactory completion of a course study. d. Successful completion of the multi-state professional responsibility examination. e. Restitution. f. Compliance with income tax laws and verification of compliance to Chief Disciplinary Counsel. g. Limitation on practice. h. Psychological evaluation, counseling, and treatment. i. Abstinence from alcohol or drugs. j. Payment of costs associated with proceedings. k. Substance abuse evaluation, counseling, and treatment. l. Participation in an Impaired Attorney Recovery and Supervision, Program if Board of Directors of State Bar has adopted such program. 4. CDC monitors lawyers on disability probation, may recommend probation 9

16 modifications, and must report any failure to comply. 5. Probation may be revoked, or more conditions imposed if lawyer is found in violation of probation. 10