Check out my recent Headnotes article: Ethics: Keeping Client Confidences: A Look at Texas Ethics Opinion 673 | Dallas Bar Association
Just a quick update: On August 28, 2018 the Texas Supreme Court issued yet another set of Amended Rules of Disciplinary Procedure that added a couple of key protections to the investigatory subpoena process for respondent attorneys.
The link to the Order and newly amended rules is here.
Both changes concern a respondent attorney’s right to object to an investigatory subpoena regardless of whether s/he is the subject of that subpoena, and both changes were mandated by the underlying law. See Government Code Section 81.080(b).
It is good news both that the amended rules are now in compliance with the law with respect to this issue and that Texas attorneys caught up in the grievance process have a bit more due process than under the last version of these rules.
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.
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.
Today (June 1) was the deadline for the newly amended Texas Rules of Disciplinary Procedure and Texas Disciplinary Rules of Professional Conduct to take effect barring further action of the Texas Supreme Court.
The Court took action.
Yesterday, just before the June 1 deadline, the Court issued an Order entitled “ORDER DELAYING EFFECTIVE DATE OF PROPOSED AMENDMENTS TO THE TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT AND THE TEXAS RULES OF DISCIPLINARY PROCEDURE PENDING FURTHER ORDER OF THE COURT”.
I believe this means that the comments submitted by the members of the State Bar and the general public were noted and that the Court wants additional time to consider the New Rules in light of those comments.
The Court has not given itself another deadline–which means the Court has time to amend the New Rules to accurately reflect the underlying statute and to provide the due process to which Texas attorneys are entitled.
Thanks to all of you who took the time to comment. If you needed proof that your voices can make a difference this just may be it.
The comments are in and the Texas Supreme Court now has until June 1, 2018 to decide what, if anything, it will change in the newly adopted Texas Rules of Disciplinary Procedure.
In other words: The ball is in their Court.
You will recall that I, along with my partner Richard Hunt, submitted a Memorandum to the Texas Supreme Court last month in which we outlined the changes we thought were necessary to bring the newly adopted rules in line with the underlying statute as well as to address very real due process concerns. We also asked you to submit your own comments prior to April 30, 2018; apparently many of you did.
I was interviewed yesterday by a reporter for LAW360 about my concerns. Check out today’s article from Law360 in which I am quoted. In the article, anyway, I got the last word:
Huey said in comments to the court that while “uncooperative” behavior isn’t defined, it’s easy to imagine a lawyer could be seen as uncooperative for opposing a subpoena, objecting to questioning of a witness or even refusing to take a settlement offer made by the chief disciplinary counsel.
She said many Texas lawyers aren’t even aware of the changing rules for the disciplinary procedures and might not appreciate the significance of the changes because they never expect to be in trouble with the state Bar.
“Most attorneys think it’s never going to happen to them,” Huey said. “But if it does, it’s really going to matter. Anyone with experience with the process knows these rules really do matter.”
However, the Texas Supreme Court will have the real last word.
And when they do, I’ll let you know what that is.
It has been weeks since the Texas Supreme Court closed the door on the amendments to the Texas Disciplinary Rules of Professional Procedure, but it left open a window.
As you may recall, the Court was required to adopt amendments to the disciplinary procedural rules in accordance with the Sunset Legislation (SB 302, in part contained in Government Code Section 81) by March 1, 2018. The Court did so, but in the Order Adopting those amendments it further ordered that the amendments “may be changed before June 1 in response to public comments” sent to email@example.com by April 30, 2018.
So let’s comment.
I have already blogged twice on this topic (Part 1 and Part 2) and identified what I believe are serious problems with the amendments and, along with others, sent comments during the initial comment period.
Now we have one more chance to appeal to the Supreme Court to fix the amended rules so that they both (1) comply with the underlying statute and (2) provide attorneys caught up in the grievance process the due process to which they are entitled.
We have prepared a Memorandum to the Supreme Court outlining some of the most egregious and obvious problems with the amendments. You can download it using this link: “Supreme Court Memorandum.” If these problems are not fixed we believe that the provisions we highlight risk being held unconstitutional if challenged.
If you want to add your name to the Memorandum, email me at firstname.lastname@example.org by April 27, 2017 and I will tell you how to do it. If you want to use the arguments we make in this Memorandum or in either of my two prior blogs in your own comments to the Supreme Court you are welcome to.
There will be no referendum or other opportunity to change these rules before they are truly final.
Whether you agree with our conclusions or not—make yourself heard now before we are stuck with the amendments as currently written for the foreseeable future.
And thanks and gratitude to my partner and co-author, Richard Hunt. Those of you who know him will recognize his persuasive prose and razor-sharp analysis throughout the Memorandum.