I am back from vacation and there are many pressing issues concerning legal ethics that need to be explored.
However, before I do that, please indulge me this one last comment on the newly amended Texas Rules of Disciplinary Procedure. It is a letter to the Editor of the Texas Bar Journal that I thought needed to be written. In the event it is never published in the Journal, I am publishing it here.
To the Editor of the Texas Bar Journal:
In the July edition President Longley dropped a footnote on his President’s Page regarding the newly amended Texas Rules of Disciplinary Procedure. Those new rules and the Order accompanying them are here. In the footnote, President Longley pointed out that the CDC was tasked with providing a process for an attorney respondent who was the subject of a grievance to object to a subpoena issued under the new investigatory subpoena procedure.
Unfortunately, there is simply no procedure in the new rules for the Respondent attorney to object to an investigatory subpoena not directed to him/her.
Rule 2.12(D) deals with a subpoena that is not yet being enforced in District Court and only allows the person who is being subpoenaed to object. It states in part that “[b]efore the time specified for compliance, a person commanded to appear or make production must present any objection . . . .”
Rule 2.12 (E) deals with objections to a subpoena that is being enforced by the CDC in District Court. For this scenario, it seems as if the Supreme Court actually intended to give the Respondent attorney the right to object to third party subpoenas. The June 21, 2018 Supreme Court Order entitled “Final Approval to the Amendments to the Texas Rules of Disciplinary Procedure”, paragraph 3(d), states, in part: “Rule 2.12(E) has been revised to state that if the Chief Disciplinary Counsel pursues enforcement of a subpoena in district court: The Respondent may raise any good faith objection to the subpoena . . . . ”
I looked for this revision, but it has not been made. Instead, Rule 2.12(E) provides only that the“person commanded to appear or make production may raise any good faith objection to the subpoena”. Once again, only if the Respondent is the subject of the investigatory subpoena can s/he make a good faith objection to it.
Shortly after the new rules were published, I called and then emailed the office of the Supreme Court rules attorney and pointed out that Rule 2.12(E) had not, in fact, been “revised” as the Supreme Court had so clearly ordered.
Attorneys who I have spoken to, who, for lack of a better term, have “been around for a while” all say that the rule error will not be corrected and that no one cares.
I hope they are not right.
I have not received a response to my email and the discrepancy between the Supreme Court’s order and the rule remains.
It is disheartening that, after months of receiving comments on the new rules, the Supreme Court made so few changes to rules that are short on due process to start with. Doubly so when we see that even a minor change that the Supreme Court actually intended to be made was ignored.
As President Longley points out in his President’s Page article, going forward, the Bar will have a chance to vote on all rule changes. And, because there is a new committee and process for making such rule changes, we can hold out hope that someone will care enough before too long to not only make the change discussed above, but to make the rest of the changes necessary to provide Texas lawyers the due process rights in the grievance process to which they are entitled.