On June 21, 2018 the Texas Supreme Court gave its final approval to the Amendments to the Texas Rules of Disciplinary Procedure (the New Rules).
If you were keeping up, you know that the Texas Supreme Court had a chance to re-write these rules to bring them into compliance with the law (Govt. Code Ch. 81) and address the many comments that they received during the comment period. Unfortunately for Texas Attorneys, the Supreme Court did not address all the problems that exist with the drafting of the rules and many inconsistencies and questions remain.
The investigatory powers given to the CDC are particularly troubling.
These include the rules regarding the new “investigatory subpoenas” and “investigatory hearings,” that leave Texas Attorneys with little or no protection during the investigatory stage and give the Chief Disciplinary Counsel (CDC) nearly unfettered access to information and witnesses before finding that there is “Just Cause” to even believe that an ethical violation has occurred.
What was the purpose of these new powers?
Understanding why the new investigative powers are so problematic starts with the statutory rulemaking authority. The legislative history shows that supporters of the Bill argued that the CDC needed the subpoena power during its investigations in order to avoid dismissing valid complaints or finding “Just Cause” on baseless ones. Another goal was to align the Texas rules with the ABA’s Model Rules for Lawyer Disciplinary Enforcement concerning investigatory proceedings.
The ABA Model Rules do provide for an investigatory subpoena, but only in accordance with the appropriate state rules of civil procedure. They also note that an investigatory subpoena might be necessary to assist disciplinary counsel in determining whether a claim had merit in those instances where the complainant had no evidence and the respondent attorney could not or would not provide any.
Our New Rules provide no such Due Process for Texas Attorneys.
The New Rules gave the CDC the investigatory subpoena power—but do not make its use subject to the rules of civil procedure as in the Model Rules. The New Rules themselves do not contain any requirement that the respondent attorney be given notice of or information about anything that takes place during the investigatory phase. Also, there is nothing in the New Rules that indicate whether this new investigative process will be used only in certain types of cases or in every single case.
To understand why this is such a big deal, you must remember that there is no general application of the Texas Rules of Civil Procedure (TRCP) to the rules of disciplinary procedure. The TRCP and its protections only apply to the discovery process after Just Cause has been found and the Commission for Lawyer Discipline becomes the client of the CDC and the Respondent becomes a party to the lawsuit. Texas Government Code 81.075(d); New Rules 2.14.
One more thing. Throughout the New Rules the “investigatory hearing” is described as a “nonadversarial proceeding”. The term “nonadversarial” appears nowhere in the underlying statute and I previously questioned what was intended by its use. The New Rules now make it clear that “nonadversarial” means that the Respondent attorney has no right to present evidence or challenge the existence of “Just Cause” at any such hearing.
What you need to know as a result.
Given the broad investigatory powers granted to the CDC under the New Rules, any Texas attorney caught up in the grievance process now needs to understand the additional risk he or she faces even before the CDC has identified an ethics violation or found that there is “Just Cause” to believe one has occurred. Under the New Rules, during the investigation of a Complaint, any or all of the following can take place:
- The CDC can use an “investigatory subpoena” to obtain documents and testimony from third parties like your bank, your staff, and your opposing counsel without any notice to you. Let me repeat that because it is so shocking. A subpoena can be served by email (or any other method under TRCP 21a) without advance notice to the subject of the subpoena or any notice at all to the Respondent attorney who is the subject of the investigation. Rule 2.12(B) and (C).
- An “investigatory subpoena” for documents or testimony can be issued at any time during the investigatory process, even before the Respondent attorney has responded to the Complaint. 2.12(B).
- An “investigatory subpoena” can demand that documents or witnesses be produced on only 24 hours notice from any place in the State of Texas. This is because, again, the rules of civil procedure do not apply (in particular TRCP 176 and 205) and there are no reasonableness or other standards in the New Rules themselves.
- If you are lucky enough to find out about an investigatory subpoena to a third party you cannot object to its issuance. Only the “person commanded to appear or make production” can object and then only if they do so in “good faith”. 2.12(D)(E). If the CDC has to enforce the subpoena in the district court a “bad faith” objection is punished by requiring payment of the CDC’s fees and costs for the enforcement. Rule 2.12(E)
- You can be subpoenaed to produce documents or appear at an investigatory hearing; if you are subpoenaed, as the subject of the subpoena you may only object if you do so in “good faith” as above. However even a good faith objection may be grounds for enhanced punishment if you end up getting sanctioned since it can be seen as “uncooperative”–an aggravating factor in determining sanctions. Rule 15.09(b)(E).
- The “investigatory subpoena” can be enforced by the district court with no right of interlocutory appeal. Rule 2.12(D) and (E).
- The CDC can set and hold an “investigatory hearing” without any notice to you, and it can be held by telephone. Rule 2.12(F).
- The process for the giving and taking of evidence at an “investigatory hearing” is up to the individual “investigatory panel” chairperson. As noted above, there are no rules of evidence and there are no rules of procedure that apply. Rule 2.12(F).
- Any evidence or testimony obtained through the “investigatory subpoena” or at an “investigatory hearing” can be recorded and used against you in any subsequent disciplinary proceeding. Rule 2.12(F) That’s right. Testimony from witnesses you never had a chance to cross-examine, taken at a hearing of which you had no notice, can be used against you in the final hearing on the grievance.
Of course we don’t have any reason to think the CDC will overreach with these new powers, but history proves that power unrestricted by rules will eventually be abused. Without any due process protections in the New Rules for Texas attorneys during the investigatory process it would be foolish to just assume that any will be provided.
Until further changes can be made through the newly formed rules committee, Texas Attorneys must beware.
Legal Ethics Today 