Texas Commission for Lawyer Discipline’s Paxton Strategy Opens New Grievance Concerns for Texas Litigators

No matter your politics, or whether you think only politics is involved, the BIG story about the lawsuit filed against Texas Attorney General Ken Paxton by the Texas Commission for Lawyer Discipline {CFLD} is that they are going after him for what he pleaded in his petition that he filed with SCOTUS asserting that there were significant constitutional irregularities that effected the outcome of the 2020 Presidential election. Rule 8.04{a}{3} of the Texas Disciplinary Rules of Professional Conduct states in part that: “A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation…”. The only violation asserted by the CFLD in their lawsuit is that Paxton, and in another lawsuit filed by them against his First Assistant, Brent Webster, violated the Texas ethics code by writing their petition asserting such claims and filing it with SCOTUS. Notably, the CFLD brings their suits against Paxton and Webster based only on what was alleged to have happened in their petition.

I served as a volunteer in Grievance Governance with the Texas Bar for 17 years. First with the Board of Disciplinary Appeals, then with the Grievance Oversight Committee. Since 2010, after retiring from grievance volunteer work, I started representing Respondent attorney’s and Complainants, and have done so continuously for the past twelve years. The remarkable story about the Paxton and Webster lawsuits is for the first time, to my knowledge, the CFLD seeks to punish a litigator for what was asserted in pleadings alone—before any evidence was proffered. Heretofore, the Chief Disciplinary Counsel, or CDC, {the lawyer for the CFLD} referred for dismissal any such complaints concluding if sanctionable conduct occurred during litigation of a matter, they would leave it up to the reviewing court to mete out any appropriate punishment. After all, the Grievance Governance system is already overloaded with work without having to review pleadings in all the myriad of cases in Texas courts.

The real take away here is that Texas litigators should beware – this is like an earthquake happening – tectonic plates have shifted! Could someone conclude you have misrepresented something in your pleadings? Maybe what you stated in only your pleading could be termed dishonest, or maybe even deceitful? If so, the CFLD has essentially sent out fair warning to all Texas litigators with the Paxton/Webster lawsuits that your continued privilege to practice law may now hinge on whether they interpret what you have pleaded falls within the confines of Rule 8.04{a}{3}! And those “confines” look to be pretty broad indeed! I would go so far to say now that if sanctions are ever awarded in any litigation, surely you must count on a Rule 8.04{a}{3} grievance to follow.

Whether the CFLD will ever be able to get the “Genie back in the bottle” on this adventurous outing against Paxton and Webster – or even if they will want to try – remains to be seen. If politics led the CFLD on this experimental “ride” – then shame on them. If, in fact, politics played no part in the CFLD’s action against Paxton and Webster, as they assert, then Texas litigators need to be forewarned that just your pleadings alone, both for plaintiffs and defendants, must pass new scrutiny – one that until now has never been undertaken by the CDC or CFLD. Until we know for sure, every Texas litigator should be very careful what they say in their pleadings – and don’t be caught saying “Come and Take It” because it appears that is just what the CFLD is hell-bent on doing!”