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UNDERSTANDING TEXAS LAWYER DISCIPLINARY PROCEDURE
AND HOW TO AVOID IT
ROBERT C. HINTON, JR., Dallas
Robert Hinton & Associates
State Bar of Texas
36th ANNUAL
ADVANCED CRIMINAL LAW COURSE
July 26-29, 2010
San Antonio
CHAPTER 13
PROFESSIONAL BIOGRAPHY
of
ROBERT C. HINTON, JR.
EDUCATION AND EMPLOYMENT:
J.D., University of Houston, April, ‟73;
Assistant Criminal District Attorney, Dallas County, Texas, April, „73 - August, „77;
Partner, Burleson, Pate & Gibson, August, „77 - June, „92;
Robert Hinton & Associates, P.C., June, „92 - present.
MEMBER:
Texas Criminal Defense Lawyers Association (Director, 1988-1995, Officer 1995-99,
President 2000-2001); National Association of Criminal Defense Lawyers; 1979 to
present; Dallas Criminal Defense Lawyers Association (former Director and Officer.
APPOINTMENTS AND HONORS:
Member, State Bar Grievance Committee, „79 -‟87 (Vice-Chair); Special Assistant
Disciplinary Counsel, Texas Commission for Lawyer Discipline, 1992 - 2004;
Martindale-Hubble “A-V” rating, from eligibility in 1978 – present.
LICENSED TO PRACTICE BY AND BEFORE:
State Bar of Texas; United States District Courts, Northern, Western, Southern and
Eastern Districts of Texas, Western District of Louisiana; United States Court of
Appeals, 5th District; United States Tax Court; United States Supreme Court.
AREAS OF PROFESSIONAL ACTIVITY:
Federal and State Criminal Defense; Representation of Lawyers and other Licensed
Professionals in Disciplinary & Licensing Matters; Frequent Continuing Legal
Education Author and Speaker.
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
TABLE OF CONTENTS
TOP TEN SOURCES OF DISCIPLINARY COMPLAINTS .................................................................................1
NEW RULES OF DISCIPLINARY PROCEDURE ...............................................................................................2
LIST OF PROFESSIONAL MISCONDUCT .........................................................................................................3
POWERPOINT PRESENTATION .......................................................................................................................21
i
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Understanding Texas Lawyer
Disciplinary Procedure.....
and How to Avoid It
_____________________________________________
State Bar of Texas
Advanced Criminal Law Course
26 July, 2010
San Antonio, Texas
Robert C. Hinton, Jr.
4040 N. Central Expwy.
Suite 810
Dallas, Texas 75204
214-219-9300
[email protected]
Texas Rules of Disciplinary
Procedure
Professional Misconduct– conduct
subject to discipline (examples):
 Act/omission violating
g Texas Disciplinary
p
y
Rules of Professional Conduct
 Violation of disciplinary or disability order
 Failure to provide information in
disciplinary procedure
 Conviction/probation/deferred adjudication
for serious or intentional crime
2
Entities in Disciplinary Process
 Supreme Court of Texas
 Commission For Lawyer Discipline
 Office of the Chief Disciplinary Counsel
 State Bar Grievance Committee
 Board of Disciplinary Appeals
 District Court
3
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Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Commission for Lawyer Discipline
► Permanent
Bar Committee
appointed by State Bar President
► 12 Members, 6 lawyer and 6 public; various Bar
advisors
► 3 year term, 2 term limit
► Reports to State Bar Board of Directors
► Sends statistical data to National Disciplinary Data
Bank of ABA
► Members Compensated for service.
► Members
4
Chief Disciplinary Counsel
► Historically,
CDC same as SBOT General Counsel
 Hired by SBOT Board of Directors
 Accountable to Commission and/or Directors
► Now,,
CDC separate
p
from SBOT General Counsel
 Hired by and accountable only to Commission
► CDC
 Review, screen, classify and investigate all information
relative to lawyer misconduct
 Review all matters not constituting Complaint
5
Chief Disciplinary Counsel cont.
 Investigate Complaints and make determination of Just
Cause of Prof. Misconduct.
 Recommend to Summary Disposition Panel of
Grievance Committee dismissal of Complaint if
appropriate
 Move BODA to transfer Disciplinary Proceeding if
appropriate
 Present cases to Evid. Panels or in District Court
 Represent Commission
 Notify parties of Complaint disposition
 File Motion to Revoke Probated Suspension if info of
violation received
6
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Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
State Bar Grievance Committee
One Committee for ea. State Bar District
Each State Bar Director nominates to President all
Committee Members for District
► Each District Committee composed of at least 9 members
►
►
 1p
public for every
y 2 lawyer
y Members
 Each Committee Panel to have 1 public for every 2 lawyer
Members
 3 year terms, 2 term limit, at least one term off before return
 Chair elected by Committee to serve no more than 2-lyr terms
 Majority constitutes quorum
 Majority vote rules – tie to Respondent
 No Member may serve on Summary Disposition Panel and
Evidentiary Panel on same matter
7
Board of Disciplinary Appeals
► Members
appointed by Supreme Court
 12 Lawyer members
 3 year terms, 2 term limit
 No more than 8 members from large
g cities, no more
than 2 members from same county
 Quorum of 6 members, panels of 3 to hear appeals
 Majority vote rules
 Members compensated for service and expenses
8
Board of Disciplinary Appeals cont.
► BODA
to
 Hear appeals of classification of Inquiry or Complaint
 Hear appeals of decisions of Evidentiary Panels
 Transfer matters within Committee or to other
Committee as deemed appropriate
 Hear and determine actions for Compulsory Discipline
 Hear and determine actions for Reciprocal Discipline
 Hear and determine actions for Disability Suspension
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Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Board of Disciplinary Appeals cont.
► Appeals
from BODA to Supreme Court
 Substantial evidence rule
► BODA
not
 “Governmental Body”.
 Subject to “Open Meetings Act”
 Subject to “Open Records Act”
10
General Overview of Grievance
Process
1.
2.
3.
CW submits written grievance to CDC
CDC classifies grievance as “Inquiry” –
dismissal
CDC classifies
l
ifi grievance
i
as “C
“Complaint”
l i t”
sends to Respondent
Respondent must submit to CDC
comprehensive Written Response within
30 days
11
General Overview of Grievance cont.
4.
5.
6.
OCDC makes determination of whether or
not Just Cause for Professional
Misconduct or Disability
If Just Cause found, Respondent notified
of findings, Respondent must make
election of District Court or Evidentiary
Panel of District Grievance Committee
OCDC files Petition setting out Findings
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Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
General Overview of Grievance cont
7.
8.
9.
10.
11.
Respondent must file comprehensive
Answer, Monday after 20 days
Rules of Civil Procedure apply
Abb i t d Di
Abbreviated
Discovery
Hearing, Evid. Panel or Dist. Ct. makes
findings, then dismisses or sanctions
Appeal: Evid. Panel to BODA, Supreme
Ct.; Dist. Ct., as in other Dist. Ct. actions
13
Evidentiary Panel Proceedings
► Respondent
Lawyer must elect District
Court or Evid. Panel within 20 days of CDC
notice or default to Evid. Panel
► Transfer of venue: Dist. Grievance
Committee (DGC) may transfer to insure
just, unbiased forum
► Chairman of DGC to which case assigned
must appoint panel to conduct hearing
14
Evidentiary Panel ProceedingsProceedings-con’t
►Composition
of Panel: at least 3
members, but not more than ½ of
entire DGC
►2/3 of Panel lawyers, 1/3 non-lawyers
►Panel is the finder of fact, CDC is
attorney representing Commission for
Lawyer Discipline (CFLD)
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Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Evidentiary Panel - Procedures
► Evidentiary
Petition- formal written statement
based on findings of CDC (similar to Petition in
Civil Cases)
► Service on lawyer or counsel: CMRRR
► Answer Monday next after 20 days– any allegation
not specifically denied, deemed admitted
► Amendments in accord with TRCP
► Hearing must be set w/in 180 days after answer
due, but may not be set sooner than 90 days
16
Evidentiary Panel – Procedures
continued--continued
► Continuance
may be granted only if “interest of
justice” requires
► Both Lawyer and CDC may compel witnesses
► CW not a party to Evid
Evid. Panel proceedings
► Cross Exam of witnesses ONLY by Lawyer,
Lawyer’s counsel and CDC
► Limited Discovery– pursuant to TRCP, but limited
► Evidentiary Rules: Evid Panel must admit all
probative and relevant evidence for “fair and
complete hearing”
17
Evidentiary Panel
Panel–
– Procedures
continued--continued
► Burden
of Proof– on CDC by preponderance
reporter must prepare verbatim record;
appealing party pays costs for reporter’s record
► No Public Access: All Evid
Evid. Panel proceedings are
closed to public
► Findings/Sanctions: Panel must issue written FOF,
conclusions of law and sanction imposed within 30
days after completion of hearing. Appeal by either
party w/in 30 days of date of notice, to BODA then
to Supreme Court. (may be able to settlement)
► Record:
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Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
District Court Acton
► Lawyer
elects w/in 20 days of Notice of Just
Cause determination
► Disciplinary Pet. filed by CDC with S. Ct. Clerk
► Petition similar to civil case, must provide notice
► S.
S Ct.
Ct must docket w/in 30 days
days, must appoint
active Dist. Judge residing outside the admin.
judicial region in which lawyer resides; appointed
judge subject to recusal.
► After appointment, Clerk of S. Ct. forwards petition
to clerk in county of lawyer’s principle place of
practice
► Answer generally same as other civil cases,
except no General Denial
19
District Court Action – cont.
► Discovery:
Abbreviated, but as in Civil case,
generally. CDC - CFLD thought processes,
communications to or from CDC that would be
privileged if private atty exempted from discovery
► Jury Trial: may be requested by either party as to
professional misconduct
► Trial must be set within 180 days of answer due
date; NO CONTINUANCE, RESETTING OR
AGREED PASS, unless proponent demonstrates
interest of justice best served
► BOP on CFLD by preponderance.
20
Sanction Options
► May
have separate Evid. Hrg on sanctions
Available to Evidentiary Panel:
► Sanctions
Disbarment
Resignation in lieu of Disbarment
Suspension
Probated suspension
Interim suspension (pending final resolution of case–
only if panel finds that lawyer poses substantial threat of
irreparable harm to client/prospective clients
 Public reprimand
 Private reprimand
 May include restitution, atty’s fees, costs related to case21





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Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Factors Considered in Determining
Sanctions
► Nature
and degree of misconduct
and circumstances of misconduct
► Loss or damage to client
► damage to profession
► Assurance to public that future legal services will
be free from the particular misconduct
► Profit derived by lawyer from misconduct
► Deterrent effect of sanctions
► Maintain public’s respect for legal profession
► **Lawyer’s conduct during course of proceedings
► Seriousness
22
Other Factors That May be
Considered….
► Lawyer’s
entire disciplinary record (including
private reprimand) may be considered
► Alcohol/drug addiction may not be considered,
unless lawyer
y has demonstrated g
good faith effort
in pursuing recovery/treatment program
► Restitution: must be assessed if misconduct
involved misappropriation, prerequisite to
consideration for re-instatement after disbarment
or suspension
► Any evidence of mitigation or aggravation that
Evid. Panel finds probative and relevant
23
Compulsory Discipline
► Compulsory
Discipline for any lawyer convicted (or
deferred) for “Intentional Crime”
 “Intentional Crime” – (1) any “Serious Crime” requiring
knowledge or intent (2) any crime involving
misapplication of money or property held as fiduciary
 “Serious Crime” – barratry, felony involving moral
turpitude, misdemeanor involving theft or
misappropriation, any attempt, conspiracy or solicitation
of another do so
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Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Compulsory Discipline cont.
► Chief
Disciplinary Counsel shall initiate
Compulsory Disciplinary action by petition with
BODA
► Record of conviction or order of deferred
conclusive as to lawyer’s
lawyer s guilt
► BODA shall hear and make determination within
45 days of respondent’s answer date (not
jurisdictional)
► Appeal of Compulsory Discipline cases from
BODA to Supreme Court without supersedeas
25
Compulsory Discipline cont.
► If
lawyer appeals determination of BODA, lawyer
suspended pending appeal
 If lawyer wins appeal suspension terminates
 If lawyer loses appeal, he shall be disbarred unless
BODA suspends under 8.06 (no incarceration)
► If
BODA suspends under 8.06, suspension shall be
for entire term of probation regardless of early
termination of probation
 If probation revoked, lawyer shall be disbarred
26
Disability Suspension
► Any
lawyer found by BODA to suffer from
Disability shall be suspended
 Disability is any physical, mental, emotional or chemical
dependency condition that renders lawyer incapable of
providing client services or otherwise perform
professional responsibilities
 Determination of Disability certified to BODA, which
forwards certification to District Disability Committee
 District Disability Committee appointed on ad hoc basis
by BODA Chair
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Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Disability Suspension cont.
 DDC compromised of 1 lawyer, 1 MD or PhD in
mental healthcare, and 1 public member
 If DDC in de novo proceedings determines
Disability,
y it certifies such to BODA, which shall
suspend indefinitely
 Suspension tolls statute of limitation on
Disciplinary mattes during period of Disability
28
Disability Suspension cont.
► Reinstatement
from Disability Suspension by
petition to BODA or District Court





If petition to District Court both parties have right to jury
Burden or proof on lawyer by preponderance
If petition denied lawyer may re-petition after 1 year
Appeal from BODA to Supreme Court
Appeal from District Court as in any civil action
29
Disability Suspension cont.
► Disability
Probation available from BODA or District
Court if lawyer demonstrates
 Ability to perform legal services
 Continued practice will not bring Courts professional
disrepute
 Unlikelihood of public harm during rehabilitation
 Adequate supervision of necessary conditions of
Disability Probation
► Disability
Probation for specific period or until
further order of BODA or District Court
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Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Interim Suspension
► If
CDC investigation finds lawyer poses substantial
threat of irreparable harm to public it shall seek
Interim Suspension
CDC shall file petition with District Court
District Court shall set hearing within 10 days
CDC has burden or proof – preponderance
If burden met Court enters Order of immediate Interim
Suspension pending final disposition of the Disciplinary
Proceedings
 District Court handles as temporary injunction
 Court may appoint custodian




31
Interim Suspension cont.
►
If lawyer prevails in underlying Disciplinary Proceeding
Interim Suspension not deemed “Sanction” for any purpose
►
Lawyer poses substantial threat of irreparable harm if
 Committed “Serious Crime”
 3 or more acts of Professional Misconduct, regardless of
harm
 Lawyer failed to provide information subpoenaed by
Committee
 Any conduct that, if continued, probably would cause
harm to public.
32
Top Ten Areas of Disciplinary
Complaints
►General
Neglect
►Inadequate Communication
►Representing Co-Def’s
Co-Def s in Crim.
Crim Case
►Not having written employment
agreement
►Representing both an organization (or
corporate entity) and its principals
33
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Chapter 13
Understanding Texas Lawyer Disciplinary Procedure And How To Avoid It
Top Ten Areas of Disciplinary
Complaints - page 2
►Failing
to clearly understand client
►Business relationship w/ Client
►Sexual relationship w/ Client
►Failing to promptly advise client of
malpractice
►Not terminating attorney-client
relationship when conflict develops
34
Some thoughts on avoiding the
Disciplinary Process….
► Communication
 Reasonably informed, to extent reasonably necessary
Rule 1.03(a),(b)
► Return
Calls– have a system
notes
notes, cards
► Letters,
Letters
► Law
Office as a business:
 Fees– unconscionable?
► Usually
► Hourly
we do not charge enough for what needs to be done
costs to operate your office?
 “Customer” service
► Representation
► Client
agreement- everyone knows what is expected
as a human being, as if business depends on that client
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Chapter 13