Thanks to a recent publication from the Texas State Bar, we now know how the Texas Chief Disciplinary Counsel (CDC) intends to conduct an Investigatory Hearing–a new type of hearing in the grievance process that is now being utilized in most grievance matters. This makes it critical that Texas attorneys caught up in the grievance process understand what will happen during this kind of hearing.
Reminder: The legislature amended the State Bar Act (the law) in 2017 as a result of the 2016-17 Sunset Review and created a new type of hearing that may take place during the grievance process–the Investigatory Hearing. The law has few details about just exactly what this type of hearing is and the amended Rules of Disciplinary Procedure are similarly lacking.
And so, until just recently, Texas lawyers did not know what the CDC thought this hearing was for or how they were going to use it. This was a problem because, without the rules of the game, Texas lawyers could neither prepare for nor defend themselves at this new type of hearing.
The answer is now here in the CDC’s Procedural Guide—the handbook distributed to Texas grievance committee members around the state that instructs them how to do their job when sitting as grievance panel members. Before now this was not publicly available.
Now, for the first time, all Texas attorneys will now know the rules because the Procedural Guide will be available on the state bar website. This is only fair since the game being played decides the fate of Texas attorneys who are facing discipline before the grievance committee.
While I recommend that you read the Procedural Guide in full for what it says about all types of hearings before the grievance committee, here are a few highlights about what will take place at the new Investigatory Hearing (page references to the Procedural Guide):
- The Investigatory Panel members are told that their job is to determine whether there is “Just Cause” to find that the attorney before them violated any disciplinary rule. (Page 5, 9, 28).
- If the panel finds “Just Cause” they will prepare a written report listing “Professional Misconduct Found” and recommend a sanction based on their findings that is an offer of settlement. (Pages 5, 9, 10, 29, 42, 43).
- They will do all of the above in the span of an hour or two “informal” and “non-adversarial” hearing after interrogating the Respondent attorney (as well as any other witnesses present) under oath and on video tape. (Pages 9, 28, 43-44).
- The complaining party or their attorney may be allowed to interrogate the responding attorney by having the panel chair ask questions for them. (Page 29).
- The Investigatory Panel acts as both judge and prosecutor in making its decisions since it shares the privilege with the CDC and uses information that the CDC shares with it in private that the attorney will ever know about. (Page 6, 28, 29; TRDP 17.08).
If you are thinking these procedures do not match up with your understanding of how the disciplinary process works or the grievance committees’ proper role in that process, I agree with you–they do not. Until they are revised to conform with the law, however, every Texas attorney invited to an Investigatory Hearing should read the Procedural Guide to understand just how the CDC is using this process.