REFORM PROPOSALS FOR THE STATE BAR OF TEXAS -&- BOARD OF LAW EXAMINERS (BLE)
1) STATE BAR OF TEXAS:
Whatever happened to grievance reform at the Texas Bar? During the 2020-2021 year, Texas Bar President Larry McDougal helped launch a Task Force on Grievance Review (.pdf document). During 2021 it accepted spoken and written commentary. Here is their concluding report (in .pdf format), which is alternatively available here (in .pdf format). Subsequently the Texas Bar's DCAAP subcommittee ("Discipline & Client Attorney Assistance Program") received that report in June of 2021. Houston attorney Diane St. Yves was the DCAAP's chairperson for 2021. We would appreciate the Bar's finally launching a DCAAP web page that lists participants along with purported progress updates. Otherwise we would appreciate a candid admission that nothing truly significant (such as a membership referendum) is happening beyond the DCAAP's long-awaited list of recommendations released basically anonymously nearly a year later, on April 25, 2022. For the Bar's board's corresponding approximately 42 minutes of debate & discussion on April 29th, 2022, please check the video from approximately 2:52:00 through 3:34:00 at this page. Isn't it remarkable how a board vote, not to mention a membership vote, was (somehow) avoided? Meanwhile to see previous video coverage of committee chair Diane St. Yves' fellow board member Steve Fischer opposing conformity and standing up for change by the Texas Bar's (elected) board of directors during their prior gathering held on September of 2021, especially for grievance reform that ultimately got discarded without any membership referendum vote (or even a board vote), please feel free to check out this page especially between minutes 1:32:00 and 1:38:30. In moving along...
Introduction: It is worth realizing that Texas cannot easily afford to keep financially supporting folks who fail as entrepreneurs basically because they could not afford a potentially helpful lawyer, as a consequence of the Texas Bar's cost-increasing & self-enriching conflicts of interest. Texas also cannot afford to continue jailing folks who take the law into their own hands for lack of an attorney, either. When more Texans can actually afford a lawyer, as would increasingly be the case if the Texas Bar gets significantly reformed, replaced, downsized or even eliminated, economic malaise as well as violence and incarcerations in Texas are likely to decline. Texas already has enough debts as it is:
http://www.usdebtclock.org/state-debt-clocks/state-of-texas-debt-clock.html
It is additionally worth noting that according to the National Center for State Courts and the Bureau of Justice Statistics, in 1992 reportedly nearly all civil defendants in the U.S. had legal counsel whereas nowadays that figure is reportedly around 25%. (Source in .pdf format). The emergence of widely available cyberspace has made it too easy for people to maliciously & dishonestly entice the Texas Bar with opportunities to further create a culture of intimidation among attorneys so that precautious lawyers will not dare report to other members and to authorities significant transgressions committed by folks running the Texas Bar. Such misdeeds include unauthorized dues increase pursuits during the most recent Sunset Review process (which it arguably tried to hide from the compulsory membership) and longstanding embezzlements. For the well being of Texas (including, but not limited to its lawyers) we therefore propose the following reforms for the Texas Bar and we highly welcome your feedback.
1) Requiring that grievance complaints against attorneys be filed in sworn & verified form under penalty of perjury, as states such as Alaska require.
Why would some grievance filers otherwise lie even more? Among other reasons, to try to evade legal fees, punish attorneys for not lying for them and / or to deflect blame for their having violated relevant retainer agreements. Empowering such predatory clientele does not make it any easier for laypersons to attract attorneys to their cases and causes despite a lack of economic resources, does it? As for our next reform proposal...
2) Removing immunity protection for grievance filers found to have lied during the disciplinary proceedings, thereby having Texas follow the lead of states reportedly such as North Carolina, Vermont, California and New York. Presently Rule 17.09 of the Texas Rules of Disciplinary Procedure (previously labeled as Rule 15.09) still states the following:
“Rule 17.09 Immunity: No lawsuit may be instituted against any Complainant or witness predicated upon the filing of a Grievance or participation in the attorney disciplinary and disability system. All members of the Commission, the Chief Disciplinary Counsel (including Special Assistant Disciplinary Counsel appointed by the Commission and attorneys employed on a contract basis by the Chief Disciplinary Counsel), all members of Committees, all members of the Board of Disciplinary Appeals, all members of the District Disability Committees, all officers and Directors of the State Bar, and the staff members of the aforementioned entities are immune from suit for any conduct in the course of their official duties. The immunity is absolute and unqualified and extends to all actions at law or in equity.”
Meanwhile, Texas Disciplinary Rule of Professional Conduct Rule 4.04 presently states the following, and should be amended to finally allow for the expeditious pursuit of civil and / or criminal recourse in the event of the filing of a grievance deemed to contain fraud:
Rule 4.04 Respect for Rights of Third Persons
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer shall not present, participate in presenting, or threaten to
present:
(1) criminal or disciplinary charges solely to gain an advantage in a civil matter; or
(2) civil, criminal or disciplinary charges against a complainant, a witness, or a potential witness in a bar disciplinary proceeding solely to prevent participation by the complainant, witness or potential witness therein.
California's Business & Professions Code 6043.5 makes it a misdemeanor offense to falsely & maliciously complain about an attorney to the bar authorities. Meanwhile North Carolina's statutory provision 84‑28.2 requires that a statement by a complainant to the bar authority not be made with malice, or else immunity will not protect the perpetrator. Why is the Texas Bar still so hostile to laypersons' abilities to win the trust of attorneys whom they seek to affordably retain, though?
3) Modifying section 27.010 of the Texas Civil Practice & Remedies Code (part of the "Texas Citizens Partipation Act" aka Texas' "anti-SLAPP statute") to remove the following exemption that was sneakily inserted in 2019 (after the assigned committee at the Texas House of Representatives had already concluded its public comments hearing on the relevant bill HB 2730):
"(10) a disciplinary action or disciplinary proceeding brought under Chapter 81, Government Code, or the Texas Rules of Disciplinary Procedure;"
A rationale for removing this exemption is that there is no shortage of (compulsory) members of the Texas Bar who believe that that Bar has (lucratively) demonstrated a fondness for pursuing groundless "intimidation lawsuits" against member attorneys to try and distract, discredit and silence critics of the Texas Bar, its lavish expenditures and conflicts of interest.
4) Removing Texas from the very small list of U.S. states that imposes a mere "preponderance of the evidence" standard for attorney grievance convictions. Texas should instead utilize a "clear and convincing" standard, like most other U.S. states reportedly do including California, Arizona, Colorado, Oklahoma, Kansas, Louisiana, Alaska, South Carolina, Georgia and Virginia (for example). The American Bar Association's (ABA's) Model Rules for Lawyer Disciplinary Enforcement #18.3's standard of proof in prosecutions of attorneys is “by clear and convincing evidence”. Nevertheless Texas Disciplinary Rule of Professional Procedure 3.08 c) imposes a mere preponderance of the evidence standard. Meanwhile reportedly at least 42 U.S. states plus the District of Columbia have the "clear & convincing" evidentiary standard (or something strongly resembling it) for attorney discipline cases, though. In contrast, nine (at most) U.S. states have the mere preponderance standard. States lacking it reportedly include Arkansas, Kentucky, Minnesota, Michigan, Missouri, New Mexico, Tennessee, Utah, and Texas. Why is Texas still so discouraging of attorneys' accepting risky clients? Is it to make it even harder to attract lawyers to one's cases & causes, thereby creating an artificial demand for so-called Access to Justice charities? Those appear to drive up nearly everyone's expenses whereas the private sector could seemingly reduce them. Is reform not long overdue? Meanwhile:
5) Allowing respondents who opt to litigate their dispute in state district court to receive a private reprimand, like they could if they had opted for the Texas Bar's own disciplinary proceedings. Texas Rule of Disciplinary Procedure 3.10 (etc.) therefore apparently warrants amending.
6) Implementing term limits on Texas Bar disciplinary officials, to reduce callousness towards the private sector’s well-being, “thuggery” and even corruption. Such terms should NOT be renewable merely as a result of having briefly worked in a different capacity for the Texas Bar prior to resuming (or attempting to resume) with Texas Bar disciplinary activities, either. Meanwhile these proposed term limits are to have retroactive effect, such that if a 5 year term limit is imposed, it is to retroactively apply (as of a future date that is to be determined) to all Texas Bar disciplinary officials who have already served in a disciplinary capacity at the Texas Bar for 5 years. When possible, the same term limits concept applies to closely affiliated entities existing under the Texas Bar’s umbrella structure, such as the Board of Disciplinary Appeals. Furthermore, the concept of working in a disciplinary capacity at the Texas Bar is to be interpreted broadly instead of narrowly. Meanwhile, we propose removing rule Texas Rule of Disciplinary Procedure 17.09’s civil immunity protection that is still enjoyed by Texas Bar disciplinary officials even when found to have engaged improperly in reckless or malicious conduct against the relevant accused attorney who endured their ethics shakedowns.
7) Spinning-off the Texas Bar's trade association activities into a separate, private entity into which dues-payer membership is merely optional. The Texas Bar in its current “unified” form takes in over $20 million annually in dues payments. Annual dues is considerably lower in several other states where attorneys are not forced to subsidize services that they do not want such as (unhelpful and typically unread) monthly publications, (relatively dormant) focus groups and (often technically nonfunctional) online forums. Virginia maintains both a mandatory membership disciplinary authority as well as a voluntary membership state bar. Texas should finally start doing so. Why not finally submit the issue for a referendum vote by the attorney membership?
8) Letting attorney/client relations be controlled merely by independently existing laws of contract, Deceptive Trade Practices Acts (DTPA) and fiduciary duties which can be enforced in ordinary civil court, pursuant to existing rules of civil procedure that actually require that filings be truthful. Through contract law, attorneys and their clients could opt-in to specific behavioral codes of attorney conduct IF they so desire. The existing code of attorney conduct in Texas often runs contrary to traditional legal principles though, and for reasons that are often difficult if not impossible to justify (other than the Texas Bar ethics industrial complex's desire to add to its $13 million annual Continuing Legal Education / CLE sales revenues). The Texas Bar should focus its energies on pursuing license suspension or revocation based upon attorneys’ violations of criminal statutes and / or a clear trend of numerous successful (and relevant) civil legal actions achieved against certain attorneys for their behavior as attorneys.
9) Allowing what remains of a mandatory membership Texas Bar to perhaps continue authorizing Continuing Legal Education (CLE) providers, but NOT to continue competing against them. The Texas Bar presently takes in over $13 million annually in CLE sales. The status quo presently maintains a perverse incentive to keep the disciplinary system a mystery from which CLE can "set one free" for an approximately $100+ an hour fee. Many state attorney licensing authorities do not sell CLE of their own, reportedly including those of Kansas, Arkansas and Tennessee. Other state licensing authorities sell relatively little CLE such as California ($690,000 annually) Virginia ($100,000 annually) and Colorado (probably less than $30,000 annually). CLE costs considerably less in Virginia ($70 per hour) than in Texas ($100+ per hour), too. For a comparison of different states' own CLE authorities (etc.), feel free to visit here.
10) No longer selling advertising on the TexasBar.com website if it is going to continue to have individual attorney disciplinary information on it. That website presently brings in hundreds of thousands of dollars per year in advertising revenue. A conflict of interest consequently exists to "spice up" the pages' contents with "dirt" on attorney members, even as the same Texas Bar doles out the discipline from which it then gets to profit through the sale of publicity on its own website. The Texas Bar boasts about how much traffic and readership it attracts, at https://www.texasbar.com/adrates. Sunset bills HB 2102's §10(b)(5) & §14(f) as well as SB 302's §10(b)(5) & §14(f) seem particularly relevant.
11) No longer charging Texas Bar members for advertising reviews, thereby resembling bars in states such as Virginia. Virginia's bar charges nothing for ad reviews, even as its annual dues is quite comparable to that of the Texas Bar despite how Virginia's attorney population is much smaller and therefore offers far less of an economy of scale. The present ad review system at the Texas Bar is counterproductively plagued with convenient nit-picking and predatory fundraising tendencies. Meanwhile the Texas Bar even increased ad review fees (without members' consent) approximately 33% a few years ago, to around $100 per advertisement reviewed.
12) In light of the Texas Bar's embezzlement issues, why doesn't it finally launch an externally operated whistleblower program that confidentially awards monetary prizes to whomever uncovers fraud, waste & abuse underway (or previously committed) at (or by) the Texas Bar? For example, where does the Texas Bar's $55 million dollar annual budget really go? We link to its budget items breakdown here. Is it not remarkably vague in some areas? How about the Access to Justice program's beneficiaries? Why do so many people call these expenditures "slush funds"? Meanwhile, please feel free to enjoy this recent report about the SEC's whistleblower program:
https://www.cnn.com/2020/10/23/business/sec-record-whistleblower-award/index.html
13) Reducing the quantity of petition candidate signatures required of Texas Bar presidential candidates each year, from over 5,000 (5% of the Bar's membership) to merely around 1,000 (1% of the Bar's membership). For more details, please visit here on our petition candidate signatures requirement page.
14) Ensuring that each allegation by the Texas Bar against a compulsory member attorney complies with the predictability and ascertainability standards set forth by the U.S. Supreme Court's 1991 case Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). For each violation by the Texas Bar, the compensation owed to that attorney is to be substantial enough to deter further abuse, fully taking into account the Texas Bar's annual $50+ million dollar budget.
15) Prohibiting the Texas Bar from inappropriately enticing the judiciary with benefits discussed in greater detail here.
16) Enacting a law guaranteeing attorney defendants in disciplinary actions the compensatory right to their legal fees upon prevailing at trial. As of 2022 the state of Arizona's bar association must compensate victorious defendant attorneys in disciplinary actions for their attorney fees. Here is the relevant legislative bill in .pdf format.
17) Moving up the Sunset review date of the Texas Bar to as soon as possible, instead of at the end of the present decade. Houston Rep. Briscoe Cain has proposed such a Sunset bill (H.B. 129) during a fairly recent special session. Its concisely put contents are here.
18) Enacting some restrictions against unfairly biased discrimination by the Texas Bar against its (still compulsory) members, especially in purported ethics enforcement actions. In 2023, the Texas legislature has explored this option. More details are available here.
Anyhow, the rationales for several of the abovementioned reform proposals regarding the Texas Bar are more elaborately present at the following link to our public comment maintained with the Sunset Commission:
https://www.sunset.texas.gov/public/uploads/Robins_R_TexasBarSunset_5-16-16_1.pdf
(which is otherwise linked near the top at http://www.TexasBarSunset.com , as well as at the Sunset Commission's public comments section at: https://www.sunset.texas.gov/reviews-and-reports/agencies/state-bar-texas ).
As a supplement, here is 2016 salary data for the Texas Bar. Can you believe the lavishness?
[Editor's note: Although the 2017 Sunset bills were ultimately passed into law with a few of the reform proposals below at least partially included in them, most of the proposals below remain unimplemented or at least inadequately implemented.]
Regarding the following Sunset Review-related bills from 2017: HB 2102/ SB 302 (pertaining to the continuation and functions of the State Bar of Texas), we provided the following timely feedback:
We OPPOSE some (previously pending) Sunset-related reform proposals in HB 2102 & SB 302. They are as follows, and are followed by specific amendment proposals where applicable.
*** We oppose abolishing Texas attorneys' (self-rule) rights to approve any changes to professional disciplinary rules and also membership dues through referendums. To paraphrase (eventual) Texas Bar president Joe Longley, HB 2102's §3 & §6 as well as SB 302's §3 & §6 currently nullify attorneys' dues-referendum-related rights. We ask that you please delete those two sections, renumbering all remaining sections accordingly. Amendments to either §3 & §6 are therefore moot. Meanwhile...
***
We also oppose eliminating democratic protections against rules changes which tentatively appear in proposed changes to §4 of both HB 2102 and SB 302.
***We oppose giving grievance filers the ability to wield a Bar authority against their estranged attorneys which can wage the power of a judicially unrestrained ("fishing expedition") investigative subpoena upon their estranged lawyers. We therefore urge caution regarding HB 2102's still imprecise §8's §81.080 and also §14(c)(2) and §14(d)(1), as well as SB 302's §8's §81.080 and also §14(c) and §14(d)(1).
***We oppose compelling attorney members to endure forced grievance mediation procedures, which presumably do not offer the accused attorney compensation for lost time, or the option to decline such an opportunity altogether and instead require that the disgruntled client pursues litigation which (unlike pursuing a Bar grievance) is actually subject to an oath of factual truthfulness and sanctions for frivolous and / or fraudulent filings as well as for perjury. Fortunately HB 2102 and SB 302 do not presently seem to compel participation in mediation, instead of its mere availability.
***We oppose requiring the Texas Bar to substantially explain to unsuccessful grievance filers why their complaints were dismissed, thereby enabling them to refile them potentially more successfully (for added harassment value against their estranged lawyers). Fortunately HB 2102 and SB 302 do not presently seem to compel such harassment-facilitation.
***Meanwhile we propose requiring HB 2102's §81.0876(b) and SB 302's §81.0876(b) to include electronic mail (aka "e-mail") to Bar members as an additional means of advising them of proposed disciplinary rules changes. E-mails should be sent to all members in addition to the Bar's traditional publication in merely the Texas Bar Journal and the Texas Register. The Bar Journal is seldom reliably delivered to members, after all and the Texas Register is not always thoroughly read by members, either. Additionally we propose...
-On a different front, and regarding a different entity:
2) BOARD OF LAW EXAMINERS (BLE):
Regarding Sunset bills HB 2103 & SB 303: Relating to the continuation and functions of the Board of Law Examiners:
Our lone reform proposal regarding HB 2103 / SB 303 pertains to:
The Board's Rule 13, §2 of the Rules Governing Admission to the Bar of Texas adopted by the Supreme Court of Texas. It allows out-of-state attorneys to join the Texas Bar without even passing the Uniform Bar Exam which is required of Texas as of 2021, much less the Texas Bar exam which preceded it:
https://ble.texas.gov/admission-without-examination
Interestingly enough, states such as California, Florida and Nevada (etc.) apparently still do not let members of the Texas Bar waive-in to become active bar members out there in the absence of passing a bar exam out there, too. This has gone on for decades despite the comparatively hospitable openness of Texas attorney membership. A reciprocity requirement regarding bar exam-waivers is therefore warranted, please. The rationales for this proposal are more elaborately included at the following link to the Sunset Commission’s public comments section:
https://www.sunset.texas.gov/reviews-and-reports/agencies/comments/1336
specifically:
(It may be necessary to copy and paste that entire u.r.l. link into a browser since e-mails tend to "break" it.).
We therefore suggest that something resembling the following emboldened text be added to that rule, please:
Rule 13, §2 Exemption from the Bar Examination for Applicants Who Are Authorized to Practice Law in Another State:
An Applicant who is authorized to practice law in another State must meet the requirements imposed on any other Applicant under these Rules, except that the Applicant is exempt from the requirement of successfully completing the Texas Bar Examination if the Applicant has been actively and substantially engaged in the lawful practice of law as the Applicant’s principal business or occupation for at least five of the last seven years immediately preceding the filing of the Application and satisfactorily passed the bar examination in a state (or the District of Columbia) which reciprocally allows Texas Bar examination passers to obtain a license to practice in state courts in that state without having to pass that state’s own bar examination, too.
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