There's a New Way to Defend Lawyer Discipline Cases. But for How Long?
"Most attorney disciplinary cases don't involve a communication by a respondent lawyer that the lawyer can credibly claim invokes the anti-SLAPP law. Still, the legislature should fix this issue for good," said Austin solo Jim McCormack.
April 05, 2019 at 03:49 PM
4 minute read
Lawyers who are in trouble may have a new way to defend themselves in attorney disciplinary proceedings after a court ruling this week—but only if the Texas Legislature doesn't close the window soon.
In Commission for Lawyer Discipline v. Rosales, Austin's Third Court of Appeals made a significant finding that the state's anti-SLAPP law, the Texas Citizens Participation Act, applies in attorney discipline cases. In a concurring opinion, one justice warned that the majority's decision would encourage more and more attorneys to file TCPA motions to dismiss to delay their disciplinary proceedings.
However, as defendant Omar Rosales prepares to appeal the Third Court ruling to the Texas Supreme Court, there's another factor at play—the Texas Legislature has been debating House Bill 2730 to curb the broad application of the anti-SLAPP law.
We asked Austin solo practitioner Jim McCormack, longtime legal ethics attorney who often represents complainants and lawyers in disciplinary proceedings, for his thoughts on the Rosales opinion, its potential impact in attorney disciplinary cases, and how the pending legislation may end that possibility. Here are his answers, edited for brevity and clarity.
What are your personal thoughts and opinions on the Rosales ruling?
McCormack: The concurring opinion by Justice Kelly correctly identifies the problem with the courts applying the anti-SLAPP law to attorney disciplinary proceedings. I have seen one other instance of a respondent lawyer trying to do that, where I was representing the complainant in a grievance. In that case, the respondent lawyer defensively asserted that the anti-SLAPP statute barred the Commission for Lawyer Discipline from pursuing a disciplinary prosecution. The underlying attorney misconduct claim arose out of a written settlement-related communication sent by the respondent attorney to opposing counsel in which a statement was made that the Commission alleged violated a disciplinary rule. I thought then and I still think that the respondent's claim that the anti-SLAPP law applied was nonsense.
The court ruled the TCPA does apply to lawyer-discipline cases. What do you think is the significance or impact of this finding on lawyer-discipline cases in Texas?
McCormack: The Court of Appeals' ruling should have very limited application to attorney disciplinary cases, assuming that the Texas Supreme Court does not reverse. Most attorney disciplinary cases don't involve a communication by a respondent lawyer that the lawyer can credibly claim invokes the anti-SLAPP law. Still, the legislature should fix this issue for good so that these defensive claims don't unnecessarily delay disciplinary proceedings or result in an unfortunate form of immunity from disciplinary action for clear misconduct.
How do you expect attorneys facing discipline cases to use this ruling in their defense, if at all?
McCormack: I assume that respondents would have to argue that they were engaged in protected speech, and that the Commission for Lawyer Discipline was trying to limit or sanction that protected speech. This defense might be more effective in the lawyer-advertising realm than elsewhere since most lawyer disciplinary cases don't involve the sort of speech that the anti-SLAPP statute purports to protect.
There is pending legislation that aims to narrow the scope of the TCPA. In your reading of the bill, how do you think that it would apply to lawyer discipline cases, if at all?
McCormack: The proposed legislation addressing the TCPA appears to fix the problem identified here. It is the problem of legislation generally that it can be hastily enacted without due consideration to its many implications and unintended consequences. And then the legislature has to fix what it did before over multiple legislative sessions as those consequences come home to roost.
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 AllHomegrown Texas Law Firms Expanded Outside the Lone Star State in 2024 As Out-of-State Firms Moved In
5 minute readEnergy Lawyers Working in Texas Expect Strong Demand to Continue in 2025 Across Energy Sector
6 minute read'Never Been More Dynamic': Big Law Leaders Reflect on 2024 and Expectations Next Year
7 minute readTrending Stories
- 1Call for Nominations: Elite Trial Lawyers 2025
- 2Senate Judiciary Dems Release Report on Supreme Court Ethics
- 3Senate Confirms Last 2 of Biden's California Judicial Nominees
- 4Morrison & Foerster Doles Out Year-End and Special Bonuses, Raises Base Compensation for Associates
- 5Tom Girardi to Surrender to Federal Authorities on Jan. 7
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
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