CDC's Proposed Changes in Rules of Disciplinary Procedure Raise Concerns
Attorneys say proposed changes in the rules of disciplinary procedure would greatly expand the State Bar of Texas chief disciplinary counsel's subpoena authority without written standards or procedures for challenging or reviewing subpoenas.
February 12, 2018 at 03:24 PM
5 minute read
Proposed changes in the rules of disciplinary procedure would greatly expand the State Bar of Texas chief disciplinary counsel's subpoena authority without written standards or procedures for challenging or reviewing subpoenas, according to five attorneys who focus on legal ethics.
In a memorandum to the State Bar, attorneys Amon Burton, Charles “Chuck” Herring Jr., James McCormack, Jason Panzer and Gaines West detailed problems, including ones related to subpoenas, that they see in the CDC's proposed revisions to the Texas Rules of Disciplinary Procedure. The memorandum was among more than 100 comments that the bar submitted, along with the proposed rules changes, to the Texas Supreme Court on Feb. 9.
S.B. 302, the State Bar's sunset bill passed by the Legislature in 2017, required the CDC to propose new rules.
“There are some problems with these rules,” said Panzer, a partner in Herring & Panzer in Austin.
One of the key problems, Panzer said, is that the rules as proposed do not appear to meet the requirements of the Texas Government Code, he said.
Austin solo McCormack, who served as the State Bar's general counsel and CDC from 1991 to 1996, said the rules currently in effect provide for the issuance of subpoenas once just cause for a complaint has been found and disciplinary proceedings have begun.
“We're talking now about subpoenas at the front end of the process,” McCormack said. “It could be very broad.”
Texas Government Code Section 81.080(a) authorizes the CDC, with the approval of the presiding officer of the appropriate district grievance committee, to issue a subpoena that “relates directly to a specific allegation of attorney misconduct.” Under the proposed rules, the CDC — with the committee chair's approval — could issue a subpoena that “relates to the complaint” for the production of books, documents, banking records and other tangible items.
Another problem cited by the five attorneys in their memorandum is that the proposed rules do not provide a procedure to object to the time and place for compliance with a subpoena.
Panzer said that in theory, the CDC could issue a subpoena to require an attorney in Austin to produce files containing thousands of pages of documents the next day in Dallas. The proposed rules do not provide a procedure for objecting to the time and place required for responding to a subpoena, he said.
The only limit on the CDC's authority to issue a subpoena under the proposals is a “contest” between the CDC and the respondent about the materiality of the production sought, which would be determined by the chair of the grievance committee or investigatory panel.
“But the rules do not define the term 'materiality,'” the five attorneys noted in their memorandum.
According to the memorandum, that would leave the interpretation and application of the materiality standard up to the committee or panel chair, who might not be a lawyer.
The attorneys noted in their memorandum the importance of having a procedure to obtain a review of a chair's decision about the materiality of subpoenaed information or testimony and also suggested imposing a good-faith requirement — such as the one set out in Texas Rule of Civil Procedure 193.2(c) — for both subpoenas and objections.
Panzer said there also is a concern that the proposed rules relating to aggravation and mitigation would allow a lawyer's “uncooperative conduct” during proceedings to be taken into consideration in determining punishment.
“Based on the proposed rules, just objecting to a subpoena could be considered being uncooperative,” he said.
The memorandum also noted that the proposed rules would permit subpoenas to be served via email.
“Any experienced trial lawyer has experienced problems with email-serve, including spam and junk-email filters,” the memorandum stated.
Shared email addresses are common, and allowing email service can result in inadvertent violation of confidentiality restrictions applicable in disciplinary proceedings, the five lawyers contended.
The State Bar is not commenting on the concerns raised about the proposed rules. In response to a request to interview Linda Acevedo, the State Bar's CDC, the bar emailed the following statement:
“As a result of legislation passed during the sunset review process, changes to attorney disciplinary process are required. The primary objective of the legislative mandates is to promote earlier resolution of complaints and increased consistency in the process. The State Bar of Texas solicited comments on proposed revisions from Jan. 10 to Feb. 8. More than 100 comments were received, and the State Bar has forwarded those comments to the Texas Supreme Court for consideration. It would be premature for the CDC to comment before the Court completes its work, which is expected to conclude by March 1.”
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllProposed Rule Will Prevent Clients From Strategically Disqualifying Lawyers
4 minute readSan Antonio Estate and Trust Litigator Voted President-Elect of State Bar
3 minute readTrending Stories
Who Got The Work
Dechert partners Andrew J. Levander, Angela M. Liu and Neil A. Steiner have stepped in to defend Arbor Realty Trust and certain executives in a pending securities class action. The complaint, filed July 31 in New York Eastern District Court by Levi & Korsinsky, contends that the defendants concealed a 'toxic' mobile home portfolio, vastly overstated collateral in regards to the company's loans and failed to disclose an investigation of the company by the FBI. The case, assigned to U.S. District Judge Pamela K. Chen, is 1:24-cv-05347, Martin v. Arbor Realty Trust, Inc. et al.
Who Got The Work
Arthur G. Jakoby, Ryan Feeney and Maxim M.L. Nowak from Herrick Feinstein have stepped in to defend Charles Dilluvio and Seacor Capital in a pending securities lawsuit. The complaint, filed Sept. 30 in New York Southern District Court by the Securities and Exchange Commission, accuses the defendants of using consulting agreements, attorney opinion letters and other mechanisms to skirt regulations limiting stock sales by affiliate companies and allowing the defendants to unlawfully profit from sales of Enzolytics stock. The case, assigned to U.S. District Judge Andrew L. Carter Jr., is 1:24-cv-07362, Securities and Exchange Commission v. Zhabilov et al.
Who Got The Work
Clark Hill members Vincent Roskovensky and Kevin B. Watson have entered appearances for Architectural Steel and Associated Products in a pending environmental lawsuit. The complaint, filed Aug. 27 in Pennsylvania Eastern District Court by Brodsky & Smith on behalf of Hung Trinh, accuses the defendant of discharging polluted stormwater from its steel facility without a permit in violation of the Clean Water Act. The case, assigned to U.S. District Judge Gerald J. Pappert, is 2:24-cv-04490, Trinh v. Architectural Steel And Associated Products, Inc.
Who Got The Work
Michael R. Yellin of Cole Schotz has entered an appearance for S2 d/b/a the Shoe Surgeon, Dominic Chambrone a/k/a Dominic Ciambrone and other defendants in a pending trademark infringement lawsuit. The case, filed July 15 in New York Southern District Court by DLA Piper on behalf of Nike, seeks to enjoin Ciambrone and the other defendants in their attempts to build an 'entire multifaceted' retail empire through their unauthorized use of Nike’s trademark rights. The case, assigned to U.S. District Judge Naomi Reice Buchwald, is 1:24-cv-05307, Nike Inc. v. S2, Inc. et al.
Who Got The Work
Sullivan & Cromwell partner Adam S. Paris has entered an appearance for Orthofix Medical in a pending securities class action arising from a proposed acquisition of SeaSpine by Orthofix. The suit, filed Sept. 6 in California Southern District Court, by Girard Sharp and the Hall Firm, contends that the offering materials and related oral communications contained untrue statements of material fact. According to the complaint, the defendants made a series of misrepresentations about Orthofix’s disclosure controls and internal controls over financial reporting and ethical compliance. The case, assigned to U.S. District Judge Linda Lopez, is 3:24-cv-01593, O'Hara v. Orthofix Medical Inc. et al.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250