Austin's Third Court of Appeals on Thursday refused to rehear a ruling that found attorneys could use the Texas anti-SLAPP law to dismiss lawyer discipline lawsuits.

By denying the State Bar of Texas Commission for Lawyer Discipline's motion for a rehearing in Commission for Lawyer Discipline v. Rosales, it means the Third Court's April opinion in the case will stand. Lawyers in the court's jurisdiction will be able to file anti-SLAPP motions to dismiss to argue that a court should throw out their discipline cases, if they're based on the right to free speech, freedom of assembly or freedom to petition the government.

The case involves allegations by the discipline commission that attorney Omar Rosales broke ethics rules by sending misleading and deceitful letters to medical providers regarding their websites' compliance with the Americans with Disabilities Act. But he had successfully argued that the state's anti-SLAPP law protected him, and trial court dismissed the case.

The Third Court's opinion found that the anti-SLAPP law applies to lawyer discipline cases. But after weighing the specifics of Rosales' case, it overturned the dismissal because it ruled that the bar had shown enough evidence for a prima facie case against Rosales.

The discipline commission argued in a May 8 motion for a rehearing that the opinion conflicted with the Texas Supreme Court's authority to regulate the legal profession and enforce lawyer discipline. Filing an anti-SLAPP motion delays discipline cases for a year or more, which throws off deadlines in the Texas Rules of Disciplinary Procedure. The Supreme Court has held that when laws interfere with the discipline process, the high court's constitutional and statutory authority over the system trumps those laws, the commission argued.

It remains to be seen whether the commission will appeal the Third Court's opinion to the Texas Supreme Court. Previously, Rosales' attorney said that he would appeal the ruling.

Regardless of the possible appeal, the authorization to use the anti-SLAPP motion for lawyer discipline cases will be short-lived. The Texas Legislature passed House Bill 2730, and Gov. Greg Abbott signed it into law, to limit the application of the Texas Citizens Participation Act motion to dismiss and specifically exclude attorney discipline cases. That law goes into effect on Sept. 1.

State Bar Office of Chief Disciplinary Counsel spokeswoman Claire Reynolds declined to comment.

Rosales' attorney, Gaines West, a partner in West, Webb, Allbritton & Gentry in College Station, wrote in an email that he agreed with the Third Court's finding that the anti-SLAPP law applies to lawyer discipline cases. He disagrees with the finding that the commission showed a prima facia case and Rosales failed to establish defenses. Rosales plans to appeal.

“I believe they stretched it so that the court has a reason to toss my client's $65,000 attorney fees award against the commission,” West said.

Read the motion for rehearing.

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