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Commission For Lawyer Discipline v. Schaefer

Following a unanimous finding of misconduct by an evidentiary panel quorum, an attorney appealed the panel's order of disbarrment to the Board of Disciplinary Appeals on the ground that the evidentiary panel was not composed of the required ratio of public to attorney members. BODA vacated the panel's judgment and remanded. The panel-composition requirement is not jurisdictional and the evidentiary panel's order was voidable, not void. Because no objection was lodged to the evidentiary panel's composition, BODA's judgment is reversed. Texas Supreme Court, No. 10-0609, 04-20-2012.

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District Grievance Committees appoint evidentiary panels for attorney disciplinary actions, and quorums of the evidentiary panels hear and decide the actions. This case raises the question of whether a properly constituted quorum of an improperly constituted evidentiary panel has the authority to act in an attorney disciplinary matter. Following a unanimous finding of misconduct by an evidentiary panel quorum, an attorney appealed the panel’s order of disbarrment to the Board of Disciplinary Appeals (BODA) on the ground that the evidentiary panel was not composed of the required ratio of public to attorney members.

The attorney failed to attend her hearing and filed no post-judgment motions with the evidentiary panel. BODA vacated the panel’s judgment and remanded for a new hearing because the evidentiary panel was improperly composed, even though the quorum of panelists present for the hearing met the required ratio of lawyers to non-lawyers. BODA concluded the panel-composition error voided the panel’s judgment for lack of capacity. We agree with BODA that the composition of evidentiary panels, a mandatory requirement, was not met here. However, we conclude that requirement is not jurisdictional and the evidentiary panel’s order was voidable, not void. Therefore, because no objection was lodged to the evidentiary panel’s composition, we reverse BODA’s judgment.

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