Texas Disciplinary Structure and
Composition
District Grievance Committees
• State Geographically Divided Into 17 Districts
Coextensive with the Director Districts
• 387 Volunteer Members Serve on the 17
District Grievance Committees
• Composition:
2/3 Lawyers
1/3 Public Members
Grievance Committees (Cont.)
• State Bar Directors Nominate Annually
at the Spring Meeting
• State Bar President Appoints Members
• Serve Three-Year Staggered Terms
• May Serve Two Consecutive Terms
Grievance Committees (Cont.)
• Committee Chairs Assign Members to
Panels Which Either Evaluate Complaints
or Conduct Evidentiary Hearings:
Summary Disposition Panels
Evidentiary Panels
Commission for Lawyer Discipline
• Twelve Member Permanent Committee
Overseeing Discipline
• 6 Attorneys and 6 Public Members
• State Bar President Appoints Lawyers
• Supreme Court of Texas Appoints
Public Members
Chief Disciplinary Counsel (CDC)
• Represents the Commission for Lawyer
Discipline
• Investigates and Prosecutes Grievances
• “Bar’s Law Firm” - Office has 91
Employees, including 34 Attorneys, 11
Investigators, and Other Support Staff
State Bar of Texas
Disciplinary Process
Processing A Grievance
Grievance filed with Chief
Disciplinary Counsel (CDC)
Classified as:
Inquiry or Complaint
Dismissed
(Does Not Allege
Professional
Misconduct)
Complaint
Inquiry
(Dismissed)
Complainant May Appeal to
Board of Disciplinary
Appeals
(BODA)
BODA Affirms:
Decision Final
Client-Attorney Assistance
Program (CAAP) for Voluntary Dispute
Resolution
BODA Reverses
Complaint
Complaint
(Respondent Has 30 Days to
Provide Rebuttal)
Just Cause
Determination by CDC
Respondent Notified of
Allegations and Elects
District Court or
Evidentiary Panel (20
Days)
No Just Cause
Determination by CDC
CDC Presents Case to
Summary Disposition
Panel for Vote
Dismiss/Proceed
SDP Votes to
Proceed
SDP Votes to
Dismiss:
No Appeal
If Respondent Fails to
Elect :
Evidentiary Panel
Evidentiary Petition Filed:
•
•
•
Factual Allegations
Rules Violated
Demands Respondent be
Disciplined
Respondent Files
Response Admitting or
Denying Allegations
Respondent Notified of
Allegations and Elects
District Court or
Evidentiary Panel
Evidentiary Panel or
District Court Hearing
Professional Misconduct
Found – Sanction
imposed or Dismissal
Commission or Respondent May
Appeal Judgment to BODA or
State Appellate Court
Decision May be
Appealed to
Supreme Court
Available Sanctions
• Private Reprimand
• Public Reprimand
• Probation of Suspension
• Partially-probated Suspension
• Active Suspension
• Disbarment
If You Receive a Grievance Notice
• Cooperate – Respond on time & in writing to allegations to avoid violating
Rules 8.01(b) & 8.04(a)(8)
• Candid & Honest- Be responsive and detailed enough to demonstrate that
there has not been any misconduct on the lawyer’s part
• Talk to Another Lawyer- Objectivity is difficult when the complaint is about
yourself
• Diligence- Familiarize yourself with the claim made against you and the
ethical rules that apply
• Hire Counsel- Lawyers that deal with grievance claims can help guide you
through the process and ensure that you are proceeding correctly
Frequent Concerns
• Statute of Limitations- Under the Texas Rules of Disciplinary
Procedure there is a 4 year statute of limitations on allegations
of professional misconduct, except in cases which disbarment
or suspension is compulsory
• Suspension of License- Under the Texas Rules of Disciplinary
Procedure an attorney’s license may be suspended if CDC
believes attorney poses a threat of irreparable harm to clients
or prospective client
Frequent Concerns
• Disbarment- Can last at least 5 years and only then may you
petition to have your law license reinstated
• Malpractice Carrier- You will not be notified concerning any
grievance claims filed against you. However most carriers
require you disclose any grievance claims when applying for
legal malpractice insurance
Stealing a Client’s Money
• Hypo 1: Attorney “borrows” money from a client’s trust account
to pay his rent for his law office. He knows he’ll do work and get
paid later so he considers it an advance.
• Does it matter if the amount taken by the attorney was $3.8
million?
• What if he returns the money and the incident was 15 years ago?
• Result: Disbarred or Not Disbarred?
• DISBARRED. Misapplication of fiduciary property is a 3rd degree
felony, an intentional crime under the Texas Rules of Disciplinary
Procedure.
Sex with a Client
• Hypo 2: Attorney agrees to represent a prostitute in a
DWI case and he agrees to accept payment for his
services with payment of her services.
• Result: Disbarred or Not Disbarred?
• DISBARRED: But not because there was sex, but
because the sex was prostitution which is illegal and
an intentional crime of moral turpitude. Additionally,
it is a conflict of interest.
Sex with a Client Continued …
• Hypo 3: An attorney defends a man in a child support
modification action. They fall in love during the representation
and have sex.
• Result: Disbarred or Not Disbarred
• NOT DISBARRED – If in Texas. 2013 attempt to pass a
modification to Rule 1.08 failed.
• DISBARRED – in 19 other jurisdictions there is a per se
prohibition against sexual relations with clients. Some as conflict
of interest, some as misconduct, and some as a prohibition in the
Code of Professional Responsibility
Really????
Overzealous Representation
• Hypo 4: Attorney lies in an interrogatory response
and fails to identify law which is dispositive but
negative to his case.
• Result: Disbarred or Not Disbarred?
• NOT DISBARRED: Situation of lies in discovery and
failure to cite the law correctly do not individually
result in disbarment. Courts appear to “pour out” an
attorney in such circumstances.
Prosecutorial Misconduct
• Hypo 5: Prosecutor intentionally fails to disclose
evidence that sends an innocent man to prison.
• Result: Disbarred or Not Disbarred?
• DISBARRED: Ken Anderson, former prosecutor and
judge, plead guilty to criminal contempt, lost his law
license, will perform 500 hours of community services
and spend 10 days in jail.
Underzealous Representation
• Hypo 6: Attorney fails to timely file a petition, fails to
appear at duly-noticed court settings 4 times, and
doesn’t inform client of her change of address or
return client calls or respond to correspondence.
• Result: Disbarred or Not Disbarred?
• DISBARRED – but remember that this was cumulative
behavior.
Hypo 7: Attorney Sleeps Through Trial.
Result: Disbarred or Not Disbarred?
Since 1976, how many U.S. Presidents
have been disbarred?
A: 0
B: 2
C: 1
Answer: Richard Nixon from NY in 1976 &
Bill Clinton from the U.S. Supreme Court in 2001.
Dying to experience the
grievance system up close
and personal?
We can help!
Ten Surefire Ways to Get a Client Grievance
Against You:
1.
Accept any type of legal work
2.
Don’t worry about conflict of interest
3.
Don’t return your client’s calls or communicate about key
deadlines and developments
4.
Don’t agree on fees in advance
Ten Surefire Ways to Get a Client
Grievance Against You:
5.
Borrow money from clients
6.
Don’t consult your client on settlement
negotiations
7.
Don’t admit mistakes
Ten Surefire Ways to Get a Client
Grievance Against You:
Ten Surefire Ways to Get a Client
Grievance Against You:
8.
Continue to represent the hard-to-please or
reckless client
9.
Engage in abusive behavior/language with
a client
Ten Surefire Ways to Get a Client
Grievance Against You:
10.
Don’t Take Care of Your Mental and
Physical Health: You Are Superman or
Wonder Woman!
General Obligation to Report
Lawyers have a duty to report if have knowledge that :
• Another lawyer “has committed a violation of applicable
rules of professional conduct that raises a substantial
question as to that lawyers honesty, trustworthiness or
fitness as a lawyer in other respects”
• A judge “has committed a violation of applicable rules of
judicial conduct that raises a substantial question as to the
judges fitness for office.”
Rule 803 (a)-(b), Texas Disciplinary Rules of Professional
Conduct
General Obligation to Report
Judges have an obligation to report or take other appropriate
action, if have knowledge that:
• another judge “has committed a violation of this Code that
raises a substantial question as to the other judge’s fitness
for office”
• a lawyer “has committed a violation of the Texas
Disciplinary Rules of Professional Conduct that raises a
substantial question as to the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects”
Canon 3(D), Texas Code of Judicial Conduct
Exceptions to Reporting Obligation
You do not have to report if:
• You cannot do so without revealing privileged or confidential client information
• The problem is caused by chemical dependency or mental illness, and you report to an
approved peer assistance program
You should be cautious about reporting judges because:
• The disciplinary rules also state that “lawyer shall not make a statement that the lawyer
knows to be false or with reckless disregard as to its truth or falsity concerning the
qualifications or integrity of a judge, adjudicatory official or public legal officer, or of a
candidate for election or appointment to judicial or legal office.”
Rule 803 (c)-(d), Texas Disciplinary Rules of Professional Conduct
Attorney/Client Privilege
Rule 8.03 Reporting Professional Misconduct
……………………..
(d) This rule does not require disclosure of knowledge
or information otherwise protected as confidential
information:
(1) by Rule 1.05
Comment 5
5. A report to a disciplinary authority of professional misconduct by a lawyer should be
made and processed in accordance with the Texas Rules of Disciplinary Procedure.
Comparable reports to approved peer assistance programs should follow the procedures
those programs have established. A lawyer need not report misconduct where the
report would involve a violation of Rule 1.05 or involve disclosure of information
protected as confidential by the statutes or regulations governing any approved peer
assistance program. However, a lawyer should consider encouraging a client to
consent to disclosure where prosecution of the violation would not substantially
prejudice the client’s interests. Likewise, the duty to report professional misconduct
does not apply to a lawyer retained to represent a lawyer whose past professional conduct
is in question. Such a situation is governed by the rules applicable to the client-lawyer
relationship.
How To Report
Misconduct
Attorney Misconduct
• Office of Chief Disciplinary Counsel
PO Box 13287
Austin, Texas 78711
512-427-4169 (fax)
Judicial Misconduct
• State Commission on Judicial Conduct
PO Box 12265
Austin, Texas 78711
(512) 463-0511
Requesting an Ethics Opinion
• Professional Ethics Committee (PEC)
- Provides advisory opinions concerning
generalized ethics questions
- Michelle Jordan, Attorney Liaison
State Bar of Texas
Office of Chief Disciplinary Counsel
PO Box 12487
Austin, Texas 78711
Substance Abuse Help
• State Bar of Texas
• Texas Lawyers Assistance Program (“TLAP”)
• 1-800-343-8527
• Local Support Group
• Austin, Texas
• Tuesdays at noon at Allan House
Hypothetical 1
• Attorney A has case with Attorney B
• Attorney A observes unethical conduct on the part of Attorney B
• Attorney A does not report under Rule 8.03
• Attorney B’s client suffers harm as a result of Attorney B’s
unethical conduct
Is Attorney A liable for any of the harm suffered by Attorney B’s
client?
Joe v. Two Thirty Nine
Joint Venture, 145 S.W.3d 150 (Tex. 2004)
f/n 2:
“…In addition, we note that the Rules do not define
standards of civil liability of lawyers for professional
conduct. TEX. DISCIPLINARY R. PROF. CONDUCT
PREAMBLE § 15.”
Dukes v. Philip Johnson/Alan Ritchie
Architects, P.C., 252 S.W.3d 586 (Tex. App.- Ft. Worth, 2008)
“Because we have not found, nor has Dukes cited, any
case law to show the contrary, we determine that
professional negligence law has not yet been broadened
to include the evaluation of professional codes of ethics
in the determination of whether a duty is owed.”
Survey Says:
The Answer Appears to be “No”
Hypothetical 2
• Attorney A has case with Attorney B
• Attorney A senses that Attorney B has lost his/her abilities
and, although not acting unethically, is not providing
effective representation to his/her client
Should Attorney A report Attorney B to:
a. the State Bar;
b. another lawyer in Attorney B’s firm; or
c. anyone else?
Survey says:
???
What Happens Now?
Post-Disbarment
Dallas, Texas, October 22, 2013
- Since 1885
Disbarred Dallas civil attorney Tom Corea on
trial for stealing from clients
A disbarred civil attorney
accused of stealing from
dozens of clients is on trial
this week in a Dallas County
courtroom.
Thomas Corea pleaded guilty
to three charges of stealing
from clients and has another
six cases pending. Corea faces
up to life in prison but could
also receive probation
because he has no criminal
record
State District Judge Mike
Snipes this morning began
hearing testimony to help
him
decide
Corea's
punishment
and
what
restitution is owed. Although
Corea pleaded guilty to three
charges, Snipes is hearing
testimony from other victims,
as well.
Corea's attorneys, John Helms
and Janie Martin, disagree
with prosecutors Jacob Harris
and Donna Strittmatter about
how much money was stolen.
The amount was at least
hundreds of thousands of
dollars but could reach a few
million.At issue is whether
Corea is still entitled to an
12/07/2012
TOM COREA’S WIFE
ATTACKED HIS MISTRESS,
RAMMED HER CAR
THROUGH A GARAGE
Because the Tom Corea saga just wasn't train-wrecky
enough, we bring you another dispatch from Ellis
County, where, if you'll recall, Corea was recently
indicted for attacking his wife and interfering with a 911
call. This incident occurred on October 28, 2011 and
involves Corea's wife, 41-year-old Jennifer Corea.
According to a Waxahachie PD incident report and a
probable cause affidavit filed in Ellis County, Jennifer
Corea took a trip that afternoon to the Waxahachie
home of her husband's mistress. The idea was to
confront the woman, who is not identified in the affidavit
and who Waxahachie PD spokesman Lt. Todd Woodruff
declined to name in summarizing the police report,
THE DALLAS OBSERVER
which is exactly what Corea
did.
According to a Waxahachie
PD incident report and a
probable cause affidavit filed
in Ellis County, Jennifer
Corea took a trip that
afternoon to the Waxahachie
home of her husband's
mistress. The idea was to
confront the woman, who is
not identified in the affidavit
and who Waxahachie PD
spokesman
Lt.
Todd
Woodruff declined to name
in summarizing the police
report, which is exactly what
Corea did.
According to the affidavit,
Corea forced her way into
the woman's home, where a
fight ensued. The mistress
Corea, cont.
was eventually able to force Corea out of the house, at
which point Corea hopped in her SUV, backed it across the
street, and gunned it. The SUV smashed into the back of
the mistress' car, sending it through the closed garage
door. Police estimated the damage at $15,000. Corea was
arrested and charged with criminal mischief over $1,500
THE DALLAS OBSERVER
www.dallasobserver.com
DALLAS NEWS & EVENTS
- Since 1980
Disbarred Attorney Tom Corea Likes Hookers, Hates Jail Pudding and
Once Stole $386,000 from a Senile Grandfather
Tom Corea, the disbarred Dallas
attorney charged with stealing
hundreds of thousands of dollars
from clients, is currently in the Lew
Sterrett Justice Center, where he's
spent every day since a judge
learned in November that he'd
covered his former Design District
office with penis graffiti. He'll be
there at least through mid-October,
when his trial is scheduled to begin.
The number of felony counts Corea
will be tried on is now up to nine,
prosecutors having tacked on an
additional five charges to the initial
indictment earlier this year.
But even that is a small, small
fraction of the crimes Corea is
accused of committing. A few days
ago, prosecutors filed a "notice of
extraneous offenses," which is
basically a list of illegal and/or
improper things Corea isn't formally
charged with but which might be
brought up during his trial.
There are 71.
THE
DALLAS OBSERVER
NEWS AND GOSSIP
WORLD EXCLUSIVES
TOM COREA GOT EVICTED, SO NATURALLY HE TORE
THE PLACE UP AND LEFT PENIS ART ON THE WALL
When attorney Tom Corea moved
his now-defunct legal practice into a
10,000-square foot Design District
warehouse a year ago, he wasted
little time in adding the Corea touch.
He installed ostentatious mahoganyand-marble counters; covered the
sidewalk with a glued-on rubber
tread; and, in several rooms,
installed Hugh Hefner-caliber deep
scarlet. He didn't get to enjoy his
decorative flourishes for long,
though. Corea was evicted from his
Farrington Street office at midnight
on Thursday after it became clear
that Corea wasn't any better about
paying his rent than about paying for
anything else. Vana Margolese, a
California-based attorney who owns
the property with her husband, said
Corea called after receiving the
eviction notice and politely asked for
Texas Rules of Disciplinary
Procedure § 13.01-03
Reinstatement
• 3 general categories of persons formerly licensed:
• Disbarred attorneys;
• Attorneys who resigned in lieu of discipline; and
• Attorneys who voluntarily resigned NOT in lieu of any disciplinary
matters.
• First two categories may apply after 5 years unless the applicant
was debarred for conviction of or having been placed on
probation without an adjudication of guilt for an Intentional
Crime or a Serious Crime
• Wait time is 5 years following the date of completion of sentence,
including any period of probation and/or parole
Judgment of Reinstatement from a State
District Court
• Applicant has the burden of proof by a preponderance
of the evidence
• Restitution
• Notice in the Texas Bar Journal
• Judgment shall direct the Board of Law Examiners to
admit the petitioner to a regularly scheduled bar
examination
Reinstatement After Indefinite Suspension
Due to Disability
• The petitioner has the burden by a preponderance of the
evidence, that the reasons for suspension no longer exist
and that termination of the suspension would be without
danger to the public and the profession.
• The Board of Disciplinary Appeals or the district court, as
the case may be, may order the petitioner to be examined
by one or more health care providers trained in the area for
which the attorney was suspended.
• Timing: any time after suspension
Reinstatement After Indefinite Suspension
Due to Disability
• An attorney suspended for 2+ consecutive years may
be required by the Board of Disciplinary Appeals or
the district court to obtain a passing grade on the MBE
or take a prescribed course of study through a law
school or through continuing legal education courses,
or do both.
Client Options if Attorney Disbarred
• The attorney will generally be
ordered to notify clients, and
return files and unearned fees
• The client owns the file and is
entitled to receive it if it is
located in the attorney’s
former office or if the landlord
has possession of the file.
Obtain new counsel immediately
How Obtain Refund?
• If someone has been appointed or
designated to sign checks on the
attorney’s trust account, request
unearned fees from that person
• File a grievance with the Office of
Chief Disciplinary Counsel. A
former client of a disbarred
attorney may be eligible for
payment from the Client Security
Fund.
ABA Commission on Ethics 20/20
On February 21, 2012, the ABA Commission on Ethics
20/20 drafted two resolutions on Technology,
Confidentiality and Client Development that proposed
amendments to ABA Model Rules of Professional
Conduct.
WELCOME TO THE NEW AGE
Rule 1.18 Duties to Prospective Clients
 Electronic communications give rise to prospective attorney-client
relationships
Rule 7.10 Communications Concerning a Lawyer’s Services
 False & Misleading communications in advertising is still wrong
Rule 7.20 Advertising
 Targeting Internet-based client development tools that lawyers use
Rule 7.30 Direct Contact with Potential Prospective Clients
 What constitutes solicitations in the Internet age?
HOW TO PROTECT INFORMATION
WHEN USING TECHNOLOGY
Rule 1.0 Terminology
 Screening: A lock isn’t good enough anymore
Rule 1.1 Competence
 As it relates to technology
Rule 1.4 Communication
 It just isn’t about returning phone calls these days …
Rule 1.6 Confidentiality
 Reasonable Measurers
CLIENT DEVELOPMENT & CONFIDENTIALITY:
Sources of Potential Problems1
Client Development
Client Confidentiality
Cloud Computing
Lawyer-Controlled
Technology
“Pay-per-Click” Advertising
Online Data Storage
(Mozy.com, Carbonite.com)
Cell Phones
Blogging & Discussion Forums
Internet-based Email
(AOL, Yahoo, Gmail)
Laptops
Lawyer Websites
Software as a Service
(SaaS)
Social & Professional Networking
Services
Flash Drives
Photocopiers
The Issues2
Social & Professional
Networking
Ex Parte Contact (3.05)
Blogging & Discussion
Forums
Lawyer-Client
Relationships
(1.18)
Lawyers
“Friending” Judges (8.4(f)) Confidentiality
(1.6)
Litigation Info. Gathering
(4.2-4.3)
1st Amendment
Multijurisdictional
Practice (5.5)
Uploading Client
Related Docs. (1.6)
The Issues: Cloud Computing3
• Outsourcing
• Terms & Conditions
• Cyberinsurance
• Industry Standards
Defending Yourself
In the matter of Betty Tsamis, Illinois Att’y Regis. and
Disciplinary Comm’n No. 2013PR0095 (August 26, 2013)
The Illinois Attorney Registration and Disciplinary
Commission reprimanded a Chicago lawyer who responded
to a negative client review on the attorney review site, AVVO,
with a post that revealed confidential information. The client
alleged in his review that the attorney had taken his case
knowing he had little chance to prevail.
This is simply false. The person did not reveal all the facts of his
situation up front in our first and second meeting. [sic] When I
When his
I received
file,
I discussed
received
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file, Ipersonnel
discussed the
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him
contents
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it with
and informed
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heemployer
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thathim
he would
likely losehim
unless
chose
to …
contest the unemployment (employers sometimes do
likelynot
lose
is [sic]). Despite knowing that he would likely lose, he chose to go
forward with a hearing to try to obtain benefits. I dislike it very
I feelwhen
badly
him lose
but but
his Iown
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beatingfacts
up for
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I feel the
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for him but his own
female
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are
what
caused
consequences
actions in beating up a female coworker are what caused the
consequences he is now so upset about.
In the Matter of Sarah Peterson Herr
A Kansas judicial panel ordered published censure for a
research attorney for the Kansas Court of Appeals for tweets
she made during a disciplinary hearing before the Kansas
Supreme Court concerning a former Kansas Attorney General.
Herr later apologized and claimed she had no idea her posts
were readable by all Twitter readers. The Court fired her.
In re Jess Raymond Gilsdorf, Illinois Att’y Regis. and
Displinary Comm’n No. 2012PR00006 (June 4, 2013)
The Illinois Attorney Registration and Disciplinary Commission
suspended Gilsdorf for 5 months because he posted a video on
YouTube. The prosecution provided the video to him in a pending
criminal matter against his client. In the video, Gilsdorf’s client is
purportedly shown delivering drugs to a confidential source. The
attorney posted the video in two parts with the title “Cops Task Force
Planting Drugs.” Among other issues, the attorney was cited for breach
of confidentiality rules for posting the video of his client without her
consent and for misconduct that threatened the fairness of the
proceeding.