New Disciplinary Rules That Actually Favor Texas Attorneys Facing a Grievance
In September 2023, two new disciplinary rules went into effect that represent a sea change in how grievances are processed in Texas.
Complainants Must Have Standing to File a Grievance
First, Complainants must now have standing to successfully bring a grievance. It is no longer acceptable for just anyone, regardless of their lack of personal knowledge or connection to the events involving an alleged ethical violation, to serve as a complainant in a grievance matter. Instead, they must meet one of the following criteria:
1) A family member of a ward in a guardianship proceeding that is the subject of the Grievance;
2) A family member of a decedent in a probate matter that is the subject of the Grievance;
3) A trustee of a trust or an executor of an estate if the matter that is the subject of the Grievance relates to the trust or estate;
4) The judge, prosecuting attorney, defense attorney, court staff member, or juror in the legal matter that is the subject of the Grievance;
5) A trustee in a bankruptcy that is the subject of the Grievance; or
6) Any other person who has a cognizable individual interest in or connection to the legal matter or facts alleged in the Grievance. Tex. R. Disciplinary P. 1.06(G)(2).
It appears the last criterion is the one that will pertain to the large majority of grievances filed. Unfortunately, there is no guidance or definition provided as to the meaning of “cognizable individual interest” or “connection to the legal matter or facts alleged.” Unless additional rules are promulgated to address these issues, it is likely that these terms will be hashed out over the coming years through a process of trial and error. The Office of Chief Disciplinary Counsel (“CDC”) will make these “standing” determinations on a case by case basis, and respondent attorneys will appeal these determinations to the Board of Disciplinary Appeals (“BODA”), who will make the ultimate call. Eventually, the meaning of these terms will take shape into what is hopefully a cohesive application of the new rule. Regardless, this rule is a big step forward from prior rules which allowed anyone to file a grievance against a Texas attorney, even if they had no ties to the situation whatsoever.
Respondent Attorneys May Appeal Classification Decisions
The second new rule allows respondent attorneys to appeal a classification decision that upgrades their grievance to complaint status, meaning they can ask BODA to reverse CDC’s decision to investigate the grievance and instead dismiss the matter. Tex. R. Disciplinary P. 2.10 (B). Prior to this rule, only complainants had the right to appeal at this stage, meaning they could ask BODA to reverse CDC’s dismissal of their grievance and send it back for further investigation. During the 2022-2023 bar year, BODA reversed in almost 6% of these cases, sending 70 cases back for investigation that otherwise would have been dismissed.[1]
Now the playing field has been leveled a bit, and respondent attorneys may likewise challenge a questionable classification decision. Respondents most likely will not win a large percentage of these appeals. But for those who do, it will save them the time, stress, and money of hiring grievance counsel, filing a written response to the allegations, attending a possible investigatory hearing, and defending a grievance at least through the investigation stage, if not further.
This is a major coup for respondent attorneys facing the grievance process. In my role as grievance counsel, I have seen a fair number of grievances that should not have been upgraded to complaint status, but were. Prior to this new rule, there was no way to deal with that but to respond to the grievance, go through the investigation process, and hope that the case was ultimately dismissed. This new rule gives respondents a right to challenge faulty classification decisions in a simple and efficient manner, while at the same time providing an impetus for CDC attorneys to more carefully consider their classification decisions.
[1] State Bar of Texas, Commission for Lawyer Discipline Annual Report 12 (2023).