By Gaines West
On June 18, 2023, with the stroke of a pen, Governor Greg Abbott signed into law monumental changes to the ethics laws that govern members of the State Bar of Texas.
Complainants Must Have Standing
Beginning September 1, H. B. 5010 requires that anyone filing a grievance must be included on a “laundry list” of approved Complainants. If the Complainant isn’t on that list, the Chief Disciplinary Counsel {CDC} for the State Bar is supposed to dismiss the grievance. The most significant category of “approved” Complainants {one whose grievance is upgraded to a Complaint for further processing} is a category described in the new law as: “…a person who has a cognizable individual interest in or connection to the legal matter or facts alleged in the grievance.” The problem with this description is that there is no definition in the new law to define just who fits this category. Perhaps the Supreme Court of Texas will promulgate rules to better define just who these terms apply to – but that process surely won’t begin until H. B. 5010 takes effect in September. Texas Ethics laws have never required “standing” to bring a grievance. In other words, up to the enactment of this new law, anyone could file a grievance against any lawyer without any review about whether they had statutory standing to complain. That is no longer the case as soon as this law becomes effective in September. The bottom line is that this new law is a help for lawyers, but a step backward for making lawyers more accountable to the public.
Appeal to BODA
The second thing this new law allows is for lawyers to resume appeals of the initial classification decision by the CDC to the Board of Disciplinary Appeals {BODA}. BODA is the Texas Supreme Court appointed administrative appellate body for the Bar. For more than a decade, after our current laws and grievance governance system became effective in 1992, Respondent Lawyers and Complainants could appeal these classification decisions, and most did. Because it caused a lot of work for BODA, and some saw it as a potential “get out of jail free – card” for lawyers, our Legislature terminated the practice of allowing Respondent Lawyers to appeal classification decisions {the decision made by the CDC on whether to upgrade a grievance to a complaint for further processing}. H. B. 5010 once again gives lawyers an additional way to rid themselves of a client’s grievance.
Held Accountable
So, “score” two points for lawyers on laws passed this past legislative session favoring the legal profession. This result hasn’t happened very often. This new law will make it harder for the public to hold lawyers accountable and it will offer a path of appeal early in the grievance process that may lead to the dismissal of a grievance. Some will say this is more of the same: lawyers protecting lawyers, while others will wonder why lawyers haven’t had these protections all along. Others might also say this new law was passed by an overwrought Legislature responding to the grievances now being litigated against Attorney General Ken Paxton, his First Assistant Brent Webster and Sidney Powell, a private practitioner, all who were involved in litigation attempting to overturn the 2020 presidential election. Had this new H.B. 5010 been the law in effect when the grievances were filed against these three, it’s doubtful that the CDC could have done anything other than dismiss the grievances because those filing the grievances probably didn’t have standing. It’s hard to know or tell if the game of politics was behind the passage of this new law, but I suppose, only time will tell.
Be Aware
Again, every lawyer should note that this is a “sea change” in grievance processing procedures. Every Texas licensed attorney should be aware of the impact and take advantage of these new protections if they should find themselves having to respond to a grievance.
