The Grievance Procedure Jose G

THE GRIEVANCE PROCEDURE

JOSE G. “JOEY” GONZALEZ, JR. Watts Guerra Craft, L.L.P. BBVA Compass Bank Bldg., Suite 220 2314 West University Drive Edinburg, Texas 78539 956-381-0500 956-381-4744 (fax) [email protected]

State Bar of Texas SOAKING UP SOME CLE A SOUTH TEXAS LITIGATION COURSE April 30- May 1, 2009 South Padre Island

CHAPTER 17

JOSE G. “JOEY” GONZALEZ, JR. Watts Guerra Craft, L.L.P. BBVA Compass Bank Bldg, Suite 220 2314 West University Drive Edinburg, Texas 78539 956-381-0500 956-381-4744 (fax) [email protected]

EDUCATION:

• JD, St. Mary’s University School of Law, San Antonio, 1998

• B.A., Political Science, University of Texas-Pan American, Edinburg, 1993

• United States Military Academy at West Point, 1989-1991 (Honorable Discharge-United States Army, 1991)

PROFESSIONAL EXPERIENCE:

2001-present Watts Guerra Craft, L.L.P., Edinburg, Texas Partner

1999-2001 Allen, Stein & Durbin, San Antonio, Texas Associate Attorney

1998-1999 United States District Court-Southern District, Brownsville, Texas Briefing Attorney for the Honorable Filemon B. Vela

1997-1998 Texas Supreme Court, Austin, Texas Judicial Intern for Texas Supreme Court Justice Nathan Hecht

LAW RELATED PRESENTATIONS AND PUBLICATIONS:

• Mikal C. Watts and Greg L. Gowan, Taking the Offensive-How to Try or Settle Your Case in One Year,” presented by Mr. Gonzalez at the Hidalgo County Bar Association “Crash Course in Personal Injury Litigation-Strategies in the Tort Reform Era” held on February 25, 2005

• Joey Gonzalez, “Filing Your Lawsuit in the New Tort Reform Era: A Brief Overview,” presented by Mr. Gonzalez at the Hidalgo County Bar Association “Nuts & Bolts Seminar for the Solo and Small Firm Practitioner” held on May 7, 2004

• Joey Gonzalez and Alex Miller, “Tort Reform and House Bill 4: A Brief Overview,” presented by Mr. Gonzalez at the Hidalgo County Bar Association “Civil Trial Seminar” held on November 20-21, 2003

• Mikal C. Watts and Joey Gonzalez, “Automotive Product Liability Experts with an Overview of Recent Cases Regarding the Admissibility of Expert Testimony,” presented by Mr. Watts at the Hidalgo County Bar Association “Advanced Civil Trial Seminar” held on November 21-22, 2002

HONORS/ACHIEVEMENTS/CIVIC ACTIVITIES:

• President, Hidalgo County Bar Association, (2008-2009)

• President, Hidalgo County Bar Foundation, (2008-2009)

• Law & Politics/Texas Monthly--Rising Star-Super Lawyer: (2007, 2008, and 2009)

• Member, State Bar of Texas Grievance Oversight Committee, (2008-present) (Appointed by the Texas Supreme Court)

• Chairman, State Bar of Texas Grievance Committee District 12B, (2007-2008)

• Panel Chair, State Bar of Texas Grievance Committee District 12B-1, (2006-2007)

• Member, State Bar of Texas Grievance Committee District 12B, (2004-present)

• Member, Texas Bar Foundation

• Board of Directors, Hidalgo County Bar Association, (2002-present)

• Board of Directors, Hidalgo County Bar Foundation, (2002-present)

• Board of Directors, Hidalgo County Young Lawyers Association, (2002-2004)

• Board of Trustees, University of Texas Pan American Alumni Association, (2003-present)

• Vice-President, University of Texas Pan American Board of Trustees, (2005-present)

• Board Member, Palmer Drug Abuse Program (PDAP), (2006-present)

• President, St. Mary’s University School of Law-Rio Grande Valley Chapter, (2007-present)

• Adjunct Professor, South Texas College, (Fall semester-2006)

• Associate Editor, St. Mary’s University Law Journal, (1997-1998)

The Grievance Procedure Chapter 17

TABLE OF CONTENTS

I. INTRODUCTION...... 1

II. PERTINENT TERMS AND DEFINITIONS ...... 1

III. THE ROLE OF THE LOCAL GRIEVANCE COMMITTEES...... 2

IV. HOW DOES A GRIEVANCE REACH THE EVIDENTIARY PANEL PROCESS...... 2 A. A Grievance Is First Filed ...... 2 B. How Is The Grievance Classified...... 2 C. CDC Investigation And Just Cause Determination ...... 3 D. Summary Disposition Cases...... 3 E. Notification of the Complaint...... 4 F. The Evidentiary Panel Proceedings and Hearing ...... 4 G. Sanctions ...... 6

V. CONCLUSION ...... 6

The Grievance Procedure Chapter 17

THE GRIEVANCE PROCEDURE proceedings. (Texas Rules of Disciplinary Procedure Rule 1.06(C)) I. INTRODUCTION Complainant—The complainant refers to the Many attorneys have navigated throughout their person, firm or other entity (including the CDC) that careers without ever having faced the grievance initiates the complaint or inquiry against the process. However, if asked, most attorneys are not respondent attorney. The complainant can be a witness aware of the system, the process, deadlines, during the evidentiary proceeding. However, the procedures, and the role of local grievance committees. complainant is not a party to the proceedings and Most importantly, a majority of attorneys do not know cannot question witnesses, file motions, object to exactly what to do when faced with a grievance. rulings, appeal rulings, or take any actions typical to a Unfortunately, lack of education or ignorance is not a party in regular proceedings. (Texas Rules of defense when confronted with the grievance process. Disciplinary Procedure Rule 1.06(F)) Some of us may go our entire careers and never have a Respondent—Refers to the attorney who is the grievance filed against us. Some of us, however, may subject of the grievance, complaint, disciplinary not be so fortunate. As the old saying goes, it is better proceeding, or disciplinary action. (Texas Rules of to be fully armed with education and not need it, than Disciplinary Procedure Rule 1.06(X)) need it and not have it. Complaint—Refers to the written allegations Many attorneys who have ignored grievances received by the office of the CDC that allege have ended up with severe sanctions that otherwise professional misconduct or attorney disability (or would have been avoided had they simply educated both), in violation of the Texas Disciplinary Rules of themselves on the grievance process and followed the Professional Conduct. (Texas Rules of Disciplinary strict deadlines and rules. Outside of studying for the Procedure Rule 1.06(G)) MPRE in law school, some attorneys never review the Disability—Refers to any physical, mental or disciplinary rules of professional conduct during their emotional condition that results in the attorney’s careers. Unfortunately, it isn’t until a grievance is filed inability to practice law, provide client services or against them that they pick up the rules for review. otherwise carry out his/her responsibilities to his/her Attorneys often have the “It will never happen to client, regardless of whether a substantive rule me” attitude and therefore, fail to familiarize violation has occurred. (Texas Rules of Disciplinary themselves with the rules and process. As you will Procedure Rule 1.06(I)) see, often, grievances are filed because clients are Disciplinary Proceeding—Refers to the angry, frustrated, and/or confused. A great majority of processing of a grievance, the investigation and grievances could have been avoided if the attorney had processing of an inquiry or complaint, the presentation simply discussed the matter with the client. When of a complaint before a summary disposition panel, and grievances are filed, most attorneys perceive and the proceeding before an evidentiary panel. (Texas believe that the grievance is without merit. However, Rules of Disciplinary Procedure Rule 1.06(L)) such perceptions and beliefs do not absolve the Evidentiary Hearing—Refers to the adjudicatory attorney of his/her responsibilities in responding to the proceeding before a grievance committee evidentiary grievance and cooperating with the investigation. panel. The evidentiary panel cannot include any panel It is important to note that this paper is neither members who participated in the summary disposition exhaustive nor complete. It merely introduces the panel in the same matter. (Texas Rules of Disciplinary attorney to the grievance process, provides definitions Procedure Rule 1.06(N)) of key terms, outlines in generalities how a grievance Evidentiary Panel—Refers to a panel of the local reaches the evidentiary process, describes the role of grievance committee that is responsible to hear the the local grievance committees, and discusses some of grievance and perform adjudicatory functions, the common grievances filed against attorneys. including imposing sanctions against a respondent attorney ranging from private reprimand to disbarment II. PERTINENT TERMS AND DEFINITIONS (should the panel find just cause). The panel sits as an To better understand the grievance process, it is adjudicatory body with the panel chair serving as the important to become familiar with often-used terms presiding judge who calls the case, asks for opening and their general meaning. statements, entertains and rules on objections, admits Chief Disciplinary Counsel—The chief evidence, asks questions when need be, and asks for disciplinary counsel, or CDC, refers to the individual closing argument by both sides. The panel considers serving as Chief Disciplinary Counsel and any of allegations of professional misconduct pertaining to the his/her assistants. The CDC attorneys represent the respondent attorney. All probative and relevant Commission for Lawyer Discipline in all evidentiary evidence necessary for a fair hearing is admissible. These panels must be comprised of two attorney

1 The Grievance Procedure Chapter 17 members for each public member. (Texas Rules of statutes and caselaw, investigating, and prosecuting of Disciplinary Procedure Rule 1.06(O)) disciplinary matters within its region. A Regional Just Cause—A term used to mean such cause as Counsel manages each regional office. (Commission if found to exist upon reasonable inquiry that would for Lawyer Discipline—Annual Report—2008, p. 10) lead a reasonably intelligent and prudent person to District 12B has a committee chair who is elected to believe that an attorney has either committed an act of that position by the committee members. A panel chair professional misconduct requiring that a sanction be appointed by the committee chair heads each of the imposed, or suffers from a disability that requires three District 12B panels. either suspension to practice law or probation. (Texas The local grievance committees are entrusted to Rules of Disciplinary Procedure Rule 1.06(U)) perform two critical roles. First, local grievance Professional Misconduct—Includes, but is not committees are responsible for reviewing complaints limited to, the following: presented by the CDC. At that point, the committee determines whether the matter should either be a. Acts or omissions by an attorney, individually or summarily dismissed or whether the case should be in concert with someone else; referred to an evidentiary panel for consideration and hearing. Should the case proceed to an evidentiary b. Attorney conduct that occurs in another state and hearing, a grievance committee panel sits as “an results in the disciplining of the attorney in that administrative tribunal to determine whether other jurisdiction, if the conduct in that state rises professional misconduct was committed and assess an to the level of professional misconduct under the appropriate sanction”. (Commission for Lawyer Texas Rules of Disciplinary Procedure; Discipline—Annual Report—2008, p. 13) This “administrative tribunal” is referred to as the c. Violation of any disciplinary rules, disability evidentiary panel. order, or judgment; IV. HOW DOES A GRIEVANCE REACH THE d. Engaging in conduct that constitutes barratry in EVIDENTIARY PANEL PROCESS the State of Texas; A. A Grievance Is First Filed All disciplinary actions and proceedings begin e. Engaging in the practice of law either during a when a grievance is first filed with the CDC’s office. period of suspension or when on inactive status; Contrary to popular belief, privity between the complaining party and the respondent attorney is not f. Conviction of a serious crime, or being placed on required. Grievances can be filed against any licensed probation for a serious crime (with or without attorney in the state of Texas by any person or entity. adjudication of guilt); The CDC may also be a complainant and retains the right to initiate a grievance against an attorney. (Texas g. Conviction of an intentional crime, or being Rules of Disciplinary Procedure 1.06(F) and (R)). placed on probation for an intentional crime (with or without adjudication of guilt). B. How Is The Grievance Classified When a grievance is first received, the CDC, (Texas Rules of Disciplinary Procedure Rule within 30 days, examines the grievance to determine 1.06(V)(1-8)) whether it will be classified as an inquiry or as a complaint. Upon this initial receipt of a grievance, the III. THE ROLE OF THE LOCAL GRIEVANCE CDC investigates whether the grievance alleges COMMITTEES conduct that would, if the allegations were determined The local grievance committees are comprised of to be true, constitute a violation of one or more Texas two-thirds attorney members and one-third public Disciplinary Rules of Conduct. (Texas Rules of members. (Texas Rules of Disciplinary Procedure Disciplinary Procedure Rule 2.10) If the grievance Rules 2.02-2.03) Grievance committee panels must be does not allege or describe conduct that would composed of two attorney members for each public constitute professional misconduct, it is classified as an member. A quorum must include one public member Inquiry. (Texas Rules of Disciplinary Procedure Rule for every two attorney members present. (Texas Rules 2.10) The grievance is then dismissed with notice to of Disciplinary Procedure Rule 2.07) District 12-B, for the complainant and respondent attorney. (Texas example, is comprised of three panels that cover Starr, Rules of Disciplinary Procedure Rule 2.10) Hidalgo, Cameron, Willacy, and Kenedy counties and If the grievance states an allegation of fall within the San Antonio region of the Chief professional misconduct, however, it is classified as a Disciplinary Counsel (“CDC”). Each regional office is Complaint. Notice of the complaint, along with a copy responsible for the processing, researching applicable of the complaint itself, is served on the respondent 2 The Grievance Procedure Chapter 17 attorney informing the attorney in question of his/her proceedings, actions, or suspensions. (Texas Rules of duty to respond to the complaint. (Texas Rules of Disciplinary Procedure Rule 6.08) Disciplinary Procedure Rule 2.10) The respondent Although complaints can involve an alleged attorney then has 30 days from the receipt of the notice violation of any of the numerous rules of professional to respond to the complaint and serve the response on conduct, some complaints are most common. These the CDC and complainant. (Texas Rules of include complaints of 1) attorney neglect; (2) Disciplinary Procedure Rule 2.10) In some cases, the commingling of client funds with personal funds by CDC will contact the respondent attorney or their not keeping the funds separate in a trust account; (3) counsel seeking specific information and charging the client a fee considered to be excessive documentation that could help the CDC to expedite the and/or unconscionable; (4) failing to earn a fee and/or process and investigation. It is prudent for the failing to return an unearned fee; (5) failing to respondent attorney to comply with all such requests. communicate adequately with a client or failing to Failure to do so may reflect negatively on the explain a matter to a client to the extent necessary for respondent attorney during the process and the client to make an educated and informed decision investigation. about the representation; (6) making a false statement The CDC will typically seek the following to a tribunal; (7) misappropriation of client funds; (8) information and documentation: improperly withdrawing from representation and/or failing to deliver the client file to the new attorney or 1. Names and contact information of witnesses with the former client; (9) practicing law while under knowledge of relevant facts; administrative or disciplinary suspension; and (10) handling a matter that the attorney knows or should 2. Employment contracts, letters of engagement, or have known was beyond his/her competence. fee agreements; Although No. (5) is the most common complaint, No. (10) is becoming more frequent as attorneys are 3. Receipts, hourly records or billing statements; taking legal matters that are beyond their competence and experience. It appears that recent legislative 4. Correspondence to and from client(s); enactments and the economy have forced attorneys to shift their areas of practice to other areas where they 5. Phone logs and/or records of long-distance calls; may lack experience and competence, resulting in an increase of legal malpractice claims and grievances. 6. Pleadings, motions, orders, and/or docket sheets; C. CDC Investigation And Just Cause 7. Copies of settlement checks and/or disbursement Determination statements; At this point, the CDC commences an investigation that involves witness interviews, 8. IOLTA or trust account records, such as monthly interviews of the complainant and respondent, among bank statements, deposit slips, and other financial other duties and responsibilities. Within 60 days from records; the Respondent’s response deadline, the CDC must conclude its investigation and determine whether there 9. State Bar Membership Department records, is just cause to proceed further. (Texas Rules of including records of current or past suspension Disciplinary Procedure Rule 2.12) and/or disciplinary actions; and, D. Summary Disposition Cases 10. In some cases, the entire client file relating to the If the CDC’s investigation determines that no just complainant’s legal matter. cause exists to proceed, the CDC will present the complaint to a summary disposition panel of the local The notice provided to the respondent attorney also grievance committee without the presence of the includes a statement that the CDC may provide complainant, respondent, or witnesses. (Texas Rules appropriate information, including the respondent’s of Disciplinary Procedure Rule 2.13) The summary response, to law enforcement authorities, the disposition panel is a confidential proceeding and is Commission on Judicial Conduct and the Supreme not open to the public. The summary disposition panel Court’s Unauthorized Practice of Law Committee reviews the complaint, response, pertinent documents, (Texas Rules of Disciplinary Procedure 2.10 and 6.08) evidence, and supplemental materials. The panel also No officer or director of the State Bar of Texas, considers the CDC’s report and recommendation and however, shall have access to any confidential records, determines whether the complaint should be dismissed. information, or proceedings relating to any disciplinary (Texas Rules of Disciplinary Procedure Rule 2.13) If the panel dismisses the complaint, the respondent and 3 The Grievance Procedure Chapter 17 complainant will be notified in writing. (Texas Rules within the 20 days required by Rule 2.15, the matter is of Disciplinary Procedure Rule 2.13) There is no assigned to the evidentiary panel. (Texas Rules of appeal from the determination by the panel to dismiss Disciplinary Procedure Rule 2.15) It is important for the case. (Texas Rules of Disciplinary Procedure Rule the attorney respondent to note that evidentiary panel 2.13) hearings allow for a private reprimand, which is the A complainant whose grievance has been least severe of all punishments available to the dismissed by a summary disposition panel cannot evidentiary panel. District court proceedings, however, amend and refile the complaint. (Texas Rules of are public. The least severe sanction available in a Disciplinary Procedure Rule 2.13) Further, the district court proceeding is a public reprimand. This is summary disposition panel does not have settlement an extremely important juncture in the process for the authority over grievance matters and cannot impose a respondent attorney. Careful consideration should be disciplinary sanction against a respondent attorney. An given to both options and an informed, educated, and admonishment letter can be sent to the respondent timely decision should be made whether to have the attorney though. Documentation of dismissed cases matter heard before a district court or the evidentiary will be retained for a period of six months, (180 days), panel. then may be destroyed after that time. (Texas Rules of In an evidentiary panel proceeding, venue shall be Disciplinary Procedure Rule 2.13) in the county of respondent’s principal place of The summary disposition panel, however, practice. (Texas Rules of Disciplinary Procedure Rule reserves the right to disagree with the CDC’s report 2.11(B)) Evidentiary panel proceedings are and recommendation to dismiss the complaint. If the confidential, unless the respondent waives summary disposition panel disagrees with the CDC’s confidentiality or if the proceeding is based upon a recommendation to dismiss, it then forwards the conviction of a serious crime. (Texas Rules of grievance to an evidentiary panel for consideration and Disciplinary Procedure Rule 2.16(B)) Another hearing. (Texas Rules of Disciplinary Procedure Rule exception to confidentiality is if the evidentiary panel 2.13) The fact that a complaint was considered by a finds that professional misconduct has occurred and summary disposition panel, and was not dismissed, imposes a sanction other than a private reprimand. In cannot be used as evidence at any point against the that case, all information, documents, and statements respondent attorney and is inadmissible in subsequent disclosed to the evidentiary panel shall be, upon proceedings. (Texas Rules of Disciplinary Procedure request, made public. (Texas Rules of Disciplinary Rule 2.13) The summary disposition panel that Procedure Rule 2.16(E)) Otherwise, the pendency, disagrees with the CDC’s recommendation to dismiss subject matter, and status of an evidentiary panel CANNOT be the same panel that serves as the proceeding may not be disclosed by the complainant, evidentiary panel on the same case. (Texas Rules of respondent or the CDC. (Texas Rules of Disciplinary Disciplinary Procedure Rule 2.17) Another separate Procedure Rule 2.16(B)). panel must hear the complaint at the evidentiary hearing stage. (Texas Rules of Disciplinary Procedure F. The Evidentiary Panel Proceedings and Rule 2.17) The evidentiary panel may not include any Hearing grievance committee member who served on the Within 60 days from the receipt of the summary disposition panel on the same case. (Texas respondent’s election or the election deadline, the CDC Rules of Disciplinary Procedure Rule 2.17) must file an evidentiary petition that includes the following: E. Notification of the Complaint If the CDC finds just cause, or the summary 1. Notice that the action is being brought by the disposition panel votes to proceed, the CDC will notify Commission for Lawyer Discipline; the respondent in writing of the decision. The respondent will also be notified of the specific acts 2. Name of the respondent and the fact that he or she and/or omissions of allegations of professional is an attorney licensed in Texas; misconduct and the rules of professional responsibility that were allegedly violated. (Texas Rules of 3. Venue facts; Disciplinary Procedure Rule 2.14(D)) Within 20 days from the receipt of the notice of 4. Factual allegations of professional misconduct allegations, the respondent attorney must elect/choose (which must adhere to the “fair notice” standard to have the complaint heard by a state district court of pleadings); (with or without a jury) or by an grievance committee evidentiary panel. The election must be in writing and 5. List of disciplinary rules allegedly violated; served upon the CDC. (Texas Rules of Disciplinary Procedure Rule 2.15) If the respondent fails to elect 4 The Grievance Procedure Chapter 17

6. Demand for judgment that the respondent attorney be served on witnesses personally or in accordance be disciplined and for any other appropriate relief; with Texas Rules of Civil Procedure 21a. (Texas and, Rules of Disciplinary Procedure Rule 2.17(H)) Within 180 days from the date the answer is filed, 7. Any other matter that is required or may be an evidentiary panel will consider all the evidence in permitted by law or by the rules of disciplinary an evidentiary hearing. (Texas Rules of Disciplinary procedure. Procedure Rule 2.17(O)) A minimum of 45 days notice of the hearing is required however. (Texas (Texas Rules of Disciplinary Procedure Rule Rules of Disciplinary Procedure Rule 2.17(O)) No 2.17(A)(1)) continuance may be granted unless good cause is The evidentiary petition must be served upon the shown. (Texas Rules of Disciplinary Procedure Rule respondent by certified mail, return receipt requested. 2.17(O)) The respondent attorney, individually or (Texas Rules of Disciplinary Procedure Rule 2.17(A)) through their counsel of choice, may present evidence, The respondent is required to file an answer to the examine witnesses, and present argument. (Texas evidentiary petition no later than 5:00 p.m., on the first Rules of Disciplinary Procedure Rule 2.17(L)) Monday following the expiration of 20 days after Examination of witnesses can only be conducted by the service of the evidentiary petition. (Texas Rules of commission, by any panel member, and by the Disciplinary Procedure Rule 2.17(B)) A failure to respondent (either individually, or through his/her answer within the deadline constitutes a default, and all attorney). The complainant does not have a right to the factual allegations in the evidentiary petition are question any witnesses. The panel chair rules on all taken as true. (Texas Rules of Disciplinary Procedure objections made during the course of the hearing and Rule 2.17(C)) The evidentiary panel will then enter an admits all probative and relevant evidence that is order of default with a finding of professional deemed necessary for a fair and complete hearing. misconduct and conducts a hearing to determine what (Texas Rules of Disciplinary Procedure Rule 2.17(L)) sanctions will be imposed. (Texas Rules of The admission or exclusion of evidence falls within the Disciplinary Procedure Rule 2.17(C)) The hearing to sole discretion of the panel chair. No evidentiary determine the appropriate sanction can be held ruling made by the panel chair can later be used as the immediately or at a later date. (Texas Rules of basis for reversal if the basis for reversal is that the Disciplinary Procedure Rule 2.17(C)) panel chair failed to strictly comply with the Texas No later than 30 days prior to the first evidentiary Rules of Evidence. (Texas Rules of Disciplinary hearing, each party may obtain disclosure of the correct Procedure Rule 2.17(L)) names of the parties, factual bases of the claims or The commission has the burden to prove the defenses, names and contact information of all those allegations of professional misconduct by a individuals with knowledge of relevant facts (and a preponderance of the evidence. (Texas Rules of brief statement outlining the individual’s connection to Disciplinary Procedure Rule 2.17(M)) The evidentiary the case), the names of experts and a brief description hearing is recorded before a certified court reporter. of the respective experts’ opinions, and a copy of any (Texas Rules of Disciplinary Procedure Rule 2.17) witness statements taken during the investigation of the The panel deliberations are held in private and are not matter. (Texas Rules of Disciplinary Procedure Rule subject to discovery. (Texas Rules of Disciplinary 2.17(D)) Procedure Rule 2.17(D)). Parties may take no more than a total of 6 hours of After the evidentiary hearing is held and all deposition testimony of witnesses. (Texas Rules of evidence is considered, the evidentiary panel shall Disciplinary Procedure Rule 2.17(E)(2)) In addition, issue a judgment within 30 days. (Texas Rules of no more than 25 written interrogatories may be served. Disciplinary Procedure Rule 2.17(P) The evidentiary (Texas Rules of Disciplinary Procedure Rule panel may (1) find just cause and that professional 2.17(E)(3)) Discrete subparts are also counted as misconduct occurred and impose sanctions; (2) find no separate interrogatories. Identification interrogatories, just cause and that professional misconduct did not however, are not counted against the 25 interrogatory occur and dismiss the case; or (3) find that the limit. There are no limits for requests for production respondent suffers from a disability and forward the and requests for admission. (Texas Rules of finding to the Board of Disciplinary Appeals. (Texas Disciplinary Procedure Rule 2.17(E)(4)(5)) Any Rules of Disciplinary Procedure Rule 2.17(P)) If the discovery disputes are taken up by the panel chair who panel finds just cause where professional misconduct then makes the final decision. (Texas Rules of occurred, it shall also include in the judgment findings Disciplinary Procedure Rule 2.17(G)) Each party has of fact, conclusions of law, and the sanctions to be subpoena power and may compel the attendance of a imposed. (Texas Rules of Disciplinary Procedure Rule witness at the evidentiary hearing. (Texas Rules of 2.17(P)) Disciplinary Procedure Rule 2.17(H)) Subpoenas must 5 The Grievance Procedure Chapter 17

It is common for evidentiary panels to hear cases f. Disbarment: This is the most severe of that involve numerous allegations of professional sanctions. The sanction results in a complete loss misconduct. It is possible that the evidentiary panel of an attorney respondent’s license to practice law may find just cause on some of the allegations of in the State of Texas. The attorney respondent’s professional misconduct while not finding just cause name is removed from the membership list of the on others. Therefore, an attorney facing five Supreme Court and the attorney respondent is allegations of professional misconduct resulting from required to return his/her law license and bar card. the same incident for example, may have an Only after 5 years can a disbarred attorney evidentiary panel dismiss three of the alleged petition a State of Texas district court to be violations while finding just cause on the other two. reinstated to the practice of law. Typically, immediately after deliberations, the panel chair will announce the panel’s decision on the g. Ancillary sanctions: This sanction may also record. If the panel finds no professional misconduct, include restitution and payment of reasonable the proceeding comes to an end. If the panel finds attorneys’ fees and all direct expenses associated professional misconduct, however, additional evidence with the disciplinary proceedings. is considered from both sides during the “sanctions” phase of the evidentiary hearing. (Commission for Lawyer Discipline---Annual Report-- The panel, as described above, conducts this -2008, pp. 20-21) separate hearing on sanctions after professional In determining the appropriate sanction, the panel misconduct is found. (Texas Rules of Disciplinary considers (1) the nature and degree of the professional Procedure Rule 2.18) misconduct; (2) the seriousness of and the circumstances surrounding the professional G. Sanctions misconduct; (3) the damage to the legal profession; (4) Upon determination of just cause, the evidentiary the assurance that those who seek legal services in the panel may consider the following sanctions: future will be protected from the type of professional misconduct found; (5) the profit to the attorney a. Private reprimand: This is the least severe of all respondent; (6) the avoidance of repetition of similar available sanctions. It is not public and the conduct in the future; (7) the deterrent effect on others; information is not published and not released (8) the conduct of the attorney respondent during the upon inquiries from the public. The sanction, course of the disciplinary proceeding; (9) the attorney however, remains as part of the attorney respondent’s disciplinary history; (10) the loss or respondent’s disciplinary history and may be damage to the client; and (11) the maintenance of considered in subsequent disciplinary respect for the legal profession. (Texas Rules of proceedings. Disciplinary Procedure Rule 2.18(A)-(J)) b. Public reprimand: This sanction is public and is V. CONCLUSION published together with the name of the attorney Having served on the local grievance committee respondent and the specific rule that was violated for the last 5 years as a member (2004-present), panel and just cause determination was made. chair (2006-2007), and chairman (2007-2008), I have been fortunate to reeducate myself on the numerous disciplinary rules that govern attorney-client conduct. c. Suspension for a certain term: This is also I encourage everyone to carefully review the referred to as an “active” suspension. The disciplinary rules on a yearly basis to refresh your attorney respondent is prohibited from practicing recollection and understanding of the rules and to law for the length of the suspension. educate yourself on any new rules or amendments. The rules are clear and provide invaluable guidance. d. Fully probated suspension: This sanction is Most, if not all, complaints involve an allegation of public and is for a specific period of time. The attorney misconduct directly related to one of these suspension, however, is probated which means rules. Being familiar with them could help you avoid a that the attorney respondent may practice law situation in the future. Whether not returning client during the period of the suspension. phone calls on a timely basis, commingling of funds, not returning a client retainer, or some other allegation, e. Partially probated suspension: This sanction is the rules provide a basic framework on what is a combination of an active suspension followed expected of an attorney when dealing with a client. by a period of probated suspension. This type of Most importantly, when confronted with a grievance, sanction is public. DO NOT INGORE IT. Whether you believe the grievance has merit is of no consequence. You must 6 The Grievance Procedure Chapter 17 address the situation and participate in the process with diligence and prudence. Hire outside counsel who is familiar with the process to assist you. Educate yourself on the process, provide a timely response to the grievance, be responsive to the state bar’s investigation, and monitor the entire process. If summoned to a hearing, make sure to appear and be prepared to answer questions relating to the grievance (with your attorney present at all times if you so choose). The process may take between nine to twelve months. Be patient.

(***Joey Gonzalez is not a legal malpractice attorney and does not represent attorneys who have been grieved by clients. The comments and recommendations above are merely observations based upon his ten years of practice and membership on the local grievance committee. They are not to be construed in any way, manner, shape, or form as providing legal malpractice advice or legal advice on how to handle a grievance and/or how to defend against a grievance. Consult with an attorney who practices in those areas of the law for legal advice.)