Photo: DNY59/iStockphoto.com

Attorney discipline statistics in Texas over the past 10 years show a grievance system that's surprisingly flat, despite steady increases in the state's lawyer population.

The number of complaints that ended in sanctions climbed and dipped over the decade with no clear trend but always stayed in the range 400 to 600 per year. The number of sanctions is lower because one attorney might have multiple complaints resolved with one sanction.

But over the past 10 years, the disciplinary counsel's office has doled out between 315 to 415 sanctions each year.

'1991 grievance system'

Austin legal ethics solo practitioner Jim McCormack, a former Texas Bar chief disciplinary counsel, said those total sanction numbers are on par with a review he did many years ago that looked at the grievance system spanning back to the 1990s.

"It looks like essentially we are doing 2019 grievance work with a 1991 grievance system," McCormack said. "I think it's worth asking the question: Do we have the right-sized grievance system?"

Seana Willing, chief disciplinary counsel of the State Bar of Texas. Courtesy photo.

But Chief Disciplinary Counsel Seana Willing said she doesn't see anything alarming in the statistics.

Willing, who assumed her post in March, said she's unsure why the total number of sanctions has remained in the 300 to 400 range over the past decade. She hopes the reason is because her office has effectively created a deterrent against attorneys committing misconduct.

"If you are doing a good job, you wouldn't see more sanctions, more discipline," Willing said. "I feel like the [Chief Disciplinary Counsel's Office] and the Commission for Lawyer Discipline are doing an amazing job as far as their mission to protect the public. I think that's kind of the key that drives us to do what we do."

Claire Reynolds, spokeswoman of the chief disciplinary counsel's office, said that the total number of sanctions has probably remained constant because it's tracking the total number of grievances that people filed against lawyers.

Although the Lone Star State's attorney population grew by 19% from 86,500 in 2009 to 103,000 in 2018, the number of grievances that people filed against attorneys has remained fairly constant. In the past 10 years, grievances have ranged from 7,200 to 8,000 annually, or an average of 7,600.

The grievance funnel

The vast majority of grievances fizzle, either because they never alleged any attorney misconduct, or because disciplinary counsel found there wasn't just cause to believe that misconduct occurred.

Every year, between 70% to 80% of grievances are classified as inquiries and dismissed because they don't allege attorney misconduct. The percentage of grievances classified as complaints, which can proceed through the system, has ranged from 20% to 31% of total grievances filed over the past 10 years, for an average of 2,018 complaints per year.

Yet even when classified as complaints, these allegations often fail. Three-quarters of the complaints end with disciplinary counsel recommending dismissal, after not finding just cause that misconduct occurred.

Source: State Bar of Texas. Graphic: Angela Morris/ALM. Note: Complaints dismissed through summary disposition numbers weren't immediately available for 2013-2014 and 2014-2015.

Other times, a complaint doesn't bring a sanction because disciplinary counsel might lose a case before a grievance committee or in a district court, Reynolds noted.

"In theory, if a case has merit it should result in a sanction. And if it doesn't, it should result in a dismissal," she said.

Types of sanctions

Over the 10-year period, suspensions have been the most common form of sanction that attorneys face for misconduct.

Reynolds said that grievance committees can tailor suspensions to fit many situations. An attorney could be fully suspended, or suspended and then placed on probation. Suspensions can also be fully probated, she noted.

Source: State Bar of Texas. Graphic: Angela Morris/ALM.

Private reprimands are the next most common sanction, followed by referrals to the grievance referral program. Both sanctions are only allowed for low-level offenses, and they're typically given to first-time offenders, Reynolds noted.

The grievance referral program, which involves sending lawyers through continuing legal education or counseling, shows one of the clearest trends over the past 10 years. The number of complaints resolved through the program has ticked up from 39 in the 2009 to 2010 bar year, to 76 in the 2018 to 2019 bar year.

Source: State Bar of Texas. Graphic: Angela Morris/ALM.

"It's proven to be a pretty positive experience for attorneys who have gone through it," Reynolds said, noting that their grievances are dismissed if they successfully complete the program.

The rarest forms of sanctions are also the most serious: disbarments and resignations in lieu of discipline, which have the same legal effect as disbarment. The number of disbarments has been trending down from a high of 39 in the 2012 to 2013 bar year, to a low of 14 in the 2018 to 2019 bar year.

Between 2009 to 2010 and 2014 to 2015 bar years, there were always higher numbers of disbarments versus resignations. This flipped in the 2015 to 2016 bar year: Over the past four years, there have been higher numbers of resignations than disbarments.

Source: State Bar of Texas

Reynolds said it's hard to explain this trend without delving into the case-by-case facts of all of the disbarments and resignations. There's no formal initiative to encourage attorneys to choose to resign rather than proceeding in litigation to disbarment, she noted.

"I do think that as time has gone on, both us and the respondent attorneys, have seen that that's an easier way to resolve it for sure," she said. "It's less expensive. The more resignations you get, the more you can point to that as an example of a possible outcome for future cases."

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Attorney Ranks Rise, But Disciplinary Actions and Grievances Drop