Things Get Crazy When The Sun Goes Down: Ethics Procedure Changes You Need to Know About

Among the first and most sweeping changes called for by the Texas Sunset Legislation is the revision of and additions to the Texas Rules of Disciplinary Procedure. Proposed changes were drafted by the office of the Chief Disciplinary Counsel (CDC) and sent to the Texas Bar membership last week for review and comment. You have only until February 8, 2018 to offer your opinions, so now is the time to read and understand the proposal. Read the proposed rules and comment to the State Bar here.

Most of the changes are intended to increase efficiency and fairness. Laudable goals, but there are problems. The most obvious is found in the new “Investigatory Hearings” procedure, and there is an issue with the new sanction guidelines that the disciplinary panels must follow.

So what is an Investigatory Hearing?

The final Sunset Report and Legislation (SB 302) requires new rules be adopted to accomplish “a process and criteria for conducting investigatory hearings to attempt earlier resolution for certain cases.” Per the Sunset Staff report, the goal is to provide a “standard opportunity for an informal hearing” in certain types of cases. And  importantly, the final version of SB 302 requires the CDC to provide a “process” for a respondent attorney to object to the use of the new subpoena power given to the CDC.

Look at the proposed rules for this new type of hearing or required process for objecting under 2.12 and 17.08. They do not contain a set “process and criteria” for an “informal hearing” and a “process” for objecting. Instead they create a mashup between a grand jury proceeding and a freewheeling plea bargaining session in which the roles of the parties are not defined, the presentation of evidence procedure is to be decided by the Investigatory Panel chair on a case by case basis, the respondent attorney can object to the subpoena but it does not say when s/he is to make the objection or when the Panel chair has to rule, the CDC and the Investigatory Panel’s communications are privileged, and due process is thrown out the window.

The CDC and Investigatory Panel’s Communications are Privileged?

Yup. Located far from the Investigatory Hearing section of the rules is proposed rule 17.08, which makes the communications between the CDC and the Investigatory Hearing Panel privileged.

Here are few more problems.

• Proposed Rule 2.12(C) says the CDC “may” set a complaint for an investigatory hearing but does not say what criteria should be used in deciding what type of cases to set for such a hearing.
• Proposed Rule 2.12(C) authorizes the CDC to issue subpoenas and allows the respondent attorney subject to a Complaint to contest the issuance, with the decision about “materiality” going to the chair of the Investigatory Panel without any indication of when or how the objection must be made or ruled upon.
• Proposed Rule 2.12(F) provides for a  “non-adversarial” “investigatory hearing” but does not say how much notice is required, whether counsel for the respondent attorney may be or can demand to be present, or what procedural rules should be followed other than permitting the chair to “allow such procedures for eliciting evidence” as the s/he wants in each individual case. There is nothing that requires notice of what the “procedures” will be.
• Proposed Rule 2.12(F) further provides that testimony may be elicited from witnesses (including the respondent attorney) and that the respondent attorney may conduct witness examination BUT s/he does not have any right to be present when testimony is being given or evidence presented.
• The Investigatory Panel can conduct its hearings by phone, but the rules don’t say where the witness is supposed to be, who will swear the witness in if the Panel chair is on the telephone, or, whether the Panel members will have advance copies of the evidence before the respondent attorney has had a chance to object and get a ruling from the Panel chair. It may not matter, since the communications between the CDC and Investigatory Panel would be privileged under proposed Rule 17.08 so the respondent attorney won’t know about it in any event.
• Proposed Rule 2.12(G) provides that the outcome will be either dismissal, a negotiated sanction, or a proceeding under Rule 2.14 (Evidentiary Hearing). Going to a Rule 2.14 proceeding is the equivalent of a finding of “just cause.” However, the rules do not say who gets to decide if the case should be dismissed or what constitutes a good deal on a negotiated sanction, or what happens if the Investigatory Panel and the CDC disagree.
• Existing Rule 2.15(D) requires that before there is a hearing before an Evidentiary Panel the CDC must give the respondent attorney notice of what ethics rules s/he is supposed to have violated. No such notice is required before an Investigatory Hearing or issuance of a subpoena. Since SB 302 requires the subpoena to relate “directly to a specific allegation of attorney misconduct”, it is important that the CDC have identified and given notice concerning which Rule the respondent attorney is to have violated. Absent this, the subpoena is likely to be no more than a fishing expedition.

What due process?

This does not sound much like the “informal hearing” to encourage early settlement called for in the Sunset Legislation. Take a look at what the respondent attorney doesn’t have in this new proceeding:
• No right to know what the charges are i.e. what Rules have been violated?
• No right to know what the hearing is for.
• No right to know what the hearing procedure is (remember that’s up to the individual Panel chair for each individual case).
• No right to counsel.
• No right to confront witnesses.
• No right to obtain evidence by subpoena.
• No right to know who will make a final decision on whether the matter is to be dismissed and what criteria and/or procedure will be used in making it.

Non-Adversarial = inquisition?

The rule says the proceeding is “non-adversarial”, but that is clearly wrong and misleading. In Texas disciplinary proceedings the CDC plays a role like that of a District Attorney, both deciding when to prosecute and prosecuting. The CDC is a prosecutor and proceedings in which the prosecutor is present, evidence is presented and the respondent attorney can object to the evidence and ask for the Panel chair to make rulings are of course, adversarial.

These are not minor details. Texas lawyers who are expected to respond to Complaints and participate in the new Investigative Hearing proceedings are entitled to clearly defined roles for all the parties, to adequate notice, and to know exactly what procedural rules will apply both (1) to the presenting of evidence and (2) to decisions regarding whether a Complaint will be dismissed or whether there is “just cause” to take a Complaint forward to an Evidentiary Hearing.

New Guidelines for Determining Sanctions.

The proposed rules include a section that expands and extensively modifies old Rules 15.11 and 2.18. As the past District 6 Chair and Panel Chair, I can attest to the practical need for the new detailed section outlining factors for the Panel to consider when determining what sanction to impose. I do have a criticism though.

Rule 15.09(D) forbids the consideration of five factors that are supposedly neither aggravating nor mitigating—presumably because they can never be relevant to a Panel’s deliberations on sanctions–even though we all know that relevance is not an inherent characteristic of any particular piece of evidence. Telling the Panel it can never consider, for example, the “withdrawal of complaint” or “failure of injured client to complain” as either a mitigating or aggravating factor doesn’t take into account the Panel’s ability to judge whether the withdrawal or failure to complain reflects efforts by the Respondent attorney to make restitution or a recognition by the complaining party that the conduct did not reflect dishonesty. Disciplinary proceedings are prosecuted in the public interest, but the private parties involved are closer to issues of motive and remorse than the CDC, and the conduct of the complaining party may well reflect on those issues. The Panel should not be barred from considering any evidence before it that it finds relevant within the broader categories of mitigating and aggravating factors.

This is your concern.

Most lawyers don’t think about the Rules of Disciplinary Procedure until they are the subject of a grievance, but these new Rules should be a matter of concern for all of us. February 8 is the deadline for comments. You may not agree with my analysis, or may have something additional to say about it. Regardless, don’t let it pass without making your voice heard here.