An open letter to State Bar of Texas

Dear Sir or Ma’am:

It’s been a tough year, but I hope this email finds you staying safe. I’m writing to urge you to give some real thought to whether your rule on the ability to impose an “interim” suspension on a Texas lawyer goes as far as it needs to in order to be able to protect the public.

As I understand it, the current Texas rules provide the following as what is required in order to be able to obtain an immediate interim suspension of an attorney:

PART XIV. INTERIM SUSPENSION

14.01. Irreparable Harm to Clients: Should the Chief Disciplinary Counsel reasonably believe based upon investigation of a Complaint that an attorney poses a substantial threat of irreparable harm to clients or prospective clients and be authorized or directed to do so by the Commission, the Chief Disciplinary Counsel shall seek the immediate interim suspension of the attorney. The Commission shall file a petition with a district court of proper venue alleging substantial threat
of irreparable harm, and the district court shall, if the petition alleges facts that meet the evidentiary standard in Rule 14.02, set a hearing within ten days. If the Commission, at the hearing, meets the evidentiary standard and burden of proof as established in Rule 14.02, the court shall enter an order without requiring bond, immediately suspending the attorney pending the final disposition of the Disciplinary Proceedings or the Disciplinary Action based on the conduct causing the harm. The matter shall thereafter proceed in the district court as in matters involving temporary injunctions under the Texas Rules of Civil Procedure. If a temporary injunction is entered, the court may appoint a custodian under Part XIII. If, at the conclusion of all Disciplinary Proceedings and Disciplinary Actions, the Respondent is not found to have committed Professional Misconduct, the immediate interim suspension may not be deemed a “Sanction” for purposes of insurance applications or any other purpose.


14.02. Burden of Proof and Evidentiary Standard: The Commission has the burden to prove the case for an interim suspension by a preponderance of the evidence. If proved by a preponderance of the evidence, any one of the following elements establishes conclusively that the attorney poses a substantial threat of irreparable harm to clients or prospective clients:

A. Conduct by an attorney that includes all of the elements of a Serious Crime as defined in these rules.
B. Three or more acts of Professional Misconduct, as defined in subsections (a) (2) (3) (4) (6) (7) (8) or (10) of Rule 8.04 of the Texas Disciplinary Rules of
Professional Conduct, whether or not actual harm or threatened harm is
demonstrated.
C. Any other conduct by an attorney that, if continued, will probably cause harm to clients or prospective clients.

Under this rule, your power is limited to issues that pose a threat of harm to clients or prospective clients. Normally, I’d agree that makes a certain amount of sense.

But here in Tennessee, our Board of Professional Responsibility is imbued with a broader power in this regard. Our rule reads as follows:

12.3.  Temporary Suspension. 
      (a) On petition of  Disciplinary Counsel and supported by an affidavit or declaration under penalty of perjury demonstrating facts personally known to affiant showing that an attorney has misappropriated funds to the attorney’s own use, has failed to respond to the Board or Disciplinary Counsel concerning a complaint of misconduct, has failed to substantially comply with a Tennessee Lawyer Assistance Program monitoring agreement requiring mandatory reporting to Disciplinary Counsel pursuant to Section 36.1, or otherwise poses a threat of substantial harm to the public, the Court may issue an order with such notice as the Court may prescribe imposing temporary conditions of probation on said attorney or temporarily suspending said attorney, or both.
     (b) Any order of temporary suspension which restricts the attorney maintaining a trust account shall, when served on any bank maintaining an account against which said attorney may make withdrawals, serve as an injunction to prevent said bank from making further payment from such account or accounts on any obligation except in accordance with restrictions imposed by the Court. 
     (c) Any order of temporary suspension issued under this Rule shall preclude the attorney from accepting any new cases, unless otherwise provided in the order. An order of temporary suspension shall not preclude the attorney from continuing to represent existing clients during the first thirty days after the effective date of the order of temporary suspension, unless otherwise provided in the order; however, any fees tendered to such attorney during such thirty day period shall be deposited in a trust fund from which withdrawals may be made only in accordance with restrictions imposed by the Court.
     (d) The attorney may for good cause request dissolution or amendment of any such order of temporary suspension by filing in the Nashville office of the Clerk of the Supreme Court and serving on Disciplinary Counsel a Petition for Dissolution or Amendment.  Such petition for dissolution shall be set for immediate hearing before the Board or a panel.  The Board or panel shall hear such petition forthwith and file its report and recommendation to the Supreme Court with the utmost speed consistent with due process. There shall be no petition for rehearing.  Upon receipt of the foregoing report, the Court may modify its order if appropriate or continue such provision of the order as may be appropriate until final disposition of all pending disciplinary charges against said attorney.

In terms of the triggering events, the big differences it seems to me are that, in Tennessee, the Disciplinary Counsel does not have to wait on a complaint to act and can act if an attorney “otherwise poses a threat of substantial harm to the public.” Now, I readily admit that this power is one that I have taken issue with when used in Tennessee in some circumstances, but I’m still writing you this letter you will never read to suggest you might want to look into getting something like this power conferred upon you in Texas.

Why?

Well, you’ve got a couple of really big problems on your hands. I know Texas is known for bandying about that “everything is bigger in Texas” line of bragging, but this time it might really be true.

Problem #1 is named Sidney Powell. She’s on something of a crusade to demonstrate over this last month or so just how much of a threat of substantial harm to the public a Texas attorney can pose and not have the threat be directed at clients or potential clients. If you aren’t familiar with what she’s been up to lately, just try Googling her name (or, and I know this will sound silly at first, but you could also try Googling “Kraken”). I’ll give you a few minutes…

See? Between gaslighting thousands of people and scamming them into sending her cash, filing repeated meritless lawsuits, including plaintiffs in those lawsuits that she doesn’t actually represent and who haven’t consented to being included, engaging in rhetoric designed to stir up “militias” and vigilante acts of violence, and (well to be blunt) seeking to undermine democracy in our country itself, if she were a Tennessee lawyer …. I think we’d be at the substantial threat of harm to the public phase of things.

Problem #2 is … well admittedly this is going to be a bit awkward but … Ken Paxton, your current Texas Attorney General. Now, you might already be aware of his having been under a long-time Securities and Exchange Commission investigation (that’s now been dismissed) as well as some related state criminal charges, and you might even have caught the news that he is under FBI investigation for corruption because some of his former subordinates turned him in, but you might not have had a moment yet to hear of the fact that he took it upon himself today, in the name of the State of Texas, to file an original petition with the U.S. Supreme Court against multiple other states (Pennsylvania, Georgia, Wisconsin, and Michigan) to seek to have the votes of literally millions of voters in those states thrown out as a way of trying to prevent the President-Elect from taking office.

Yeah, kind of staggering, right?

Technically, he’s at least doing better than Ms. Powell on competence as he’s also filed a bill asking the U.S. Supreme Court for leave to proceed with the Petition, but still … doing better than Ms. Powell on competence is a really low bar.

You can get access to all of the Texas Supreme Court filings here. But, for convenience, here’s the Conclusion paragraph of the petition:

This Court should first administratively stay or temporarily restrain the Defendant States from voting in the electoral college until further order of this Court and then issue a preliminary injunction or stay against their doing so until the conclusion of this case on the merits. Alternatively, the Court should reach the merits, vacate the Defendant States’ elector
certifications from the unconstitutional 2020 election results, and remand to the Defendant States’ legislatures pursuant to 3 U.S.C. § 2 to appoint electors.

So, oh also, many reports are speculating (because of the aforementioned SEC and FBI investigations) that Mr. Paxton is doing this not because of any belief that the claim is anything other than a frivolous one, but to see if he can get one of those pardons the outgoing President is throwing around these days.

Theoretically, your existing rule might get you there with respect to the Attorney General since this kind of buffoonery does threaten his client – the State of Texas — but it sure would be easier if you only had to show that he poses a threat of substantial harm to the public.

Also, the suspension of a state law license wouldn’t be pardonable by the President, so that’d be a bit of a nice bonus too.

The perils of letting your clients speak for themselves.

I’ve been known in the past when writing or speaking about Model Rule 4.2 and the restrictions it imposes to make the point that our ethics rule treats grown up adults as incapable of making decisions for themselves. Mostly jokingly I make that point. When elaborating it is merely to focus on the idea that in order to protect clients from overreaching by adverse counsel the rule does not allow the client to make the decision it wishes to communicate with the lawyer for their adversary. The consent to allow such a communication to occur has to come from the lawyer for that person.

But, what can happen when a represented client decides to freelance and talk about their legal issues without the input of their counsel? Well, as luck would have it during this extremely historic week in the United States, we have an example that can be taught and learned from.

An example where the client made a public communication that could be described by those who read it as “incoherent,” “utterly frivolous,” “chock-full of impenetrable arguments and unsupported assertions,” “organized in ways that escape our understanding,” and that “capitalizes words seemingly at random.”

You probably know exactly what I am referring to.

What? No, I didn’t see that the third President in U.S. history to ever be impeached sent a letter out earlier this week that his lawyers didn’t bless. I’ll have to check that out.

No, I’m referring to a brief that was filed in the Seventh Circuit Court of Appeals by a represented party but that wasn’t actually authored or approved by the lawyer for the party.

The ABA Journal has a story about it here. You can give the two opinions of the Court of Appeals that resulted a read if you’d like here and here.

Though as both the article and the opinion stress in their own ways, the true problem for the lawyer involved in this situation, and the reason for sanctioning, was the decision to let the client’s filing appear as if it had been the work-product of the lawyer and not a pro se filing by the client. The Seventh Circuit was particularly chapped when it first ruled at the notion that an attorney was responsible for a “monstrosity of an appellate brief.”

The patently frivolous nature of this appeal isn’t the only thing that troubles us. The hopelessness of McCurry’s cause didn’t deter her lawyer, Jordan Hoffman, from signing and submitting a bizarre appellate brief laden with assertions that have no basis in the record and arguments that have no basis in the law.

That, in and of itself, is a rare variation on a topic much-discussed, and likely much more common, when a lawyer offers behind-the-scenes assistance to a client but then has the client make the filing pro se and without disclosing that a lawyer’s assistance was provided. That is a set of circumstances that can also bring about ire from a court but for entirely different reasons.

As a reminder to my Tennessee-based readers, we have a Formal Ethics Opinion addressing that particular ghostwriting issue, which you can refresh your memory about at this link.

Stress, drinks, and folderol

Over the last several months there have been various iterations of stories and reports making the rounds about the susceptibility of our profession to depression and substance abuse, reports of 1 in 5 lawyers being problem drinkers, etc.  There are also always folks out there writing variations of pieces about the problems that are created by incivility among lawyers.  Here’s one rolled out earlier this month.  While I am a strong believer that vague and “eye of the beholder” concepts such as civility and professionalism should be kept separate from ethical codes that are enforceable through discipline, I’m also on record about the general, good advice of simply not being an ass.

I don’t know if it is true, as I’ve heard some say now or as some said in 1989 before I was ever even practicing for that matter, that things are worse/more vitriolic now than they have been in the past.  I don’t purport to know the answer to that last question but certainly have my own cynical views about nostalgia generally (and as to the practice of law particularly) where I end up agreeing almost wholeheartedly with John Hodgman’s view:

That’s the parlor trick of nostalgia, and it’s why nostalgia is the worst. It is a toxic impulse that leads to nothing good, honestly. The idea that things were better once and are terrible now and getting worse every minute is what fuels the worst, in my opinion, movements in contemporary culture.

But, at the same time I recognize in myself the additional stress in life that can come as a side effect to all of the wonderful benefits that technological advances do bring to life.  None of us are perfect and all of us are under pressure and all of us feel the need to provide rapid responses and take rapid action, a need that is inculcated with each passing day that we practice in the always-at-work world of smartphones, wearable tech, and whatever might have been invented just now.

A week from today I will be speaking in Memphis for attorneys who need an hour of ethics credit on the topic of “Ethics in Dealing With Opposing Counsel.  Ironically or not, the talk will be in connection with a Happy Hour event, and there will be adult drinks available afterwards.

All professions have aspects of what they do that induce stress; lawyers are not unique in that regard.  Yet, one thing that we do have to deal with that almost no other professionals have to endure are folks like the Connecticut gentleman who prompted this federal court order and who claims to have reopened the “federal postal court” and to have created his own language rife with strange syntax, mathematical formulas, and a core tenet that only nouns have legal meanings.

Ask any LAWYER YOU know and THEY’LL TELL YOU that they’ve HAD TO DEAL at least ONCE with one of THESE CHARACTERS that also MANAGES TO ALWAYS have to work in random BOUTS OF capitalization.  Having to deal with these folks and assist clients in attempting to unwind the crazy stuff these jokers attempt to do is a bonus stressor for the legal profession.

In this particular incident, as today’s ABA Journal online article explains, most of the heavy lifting in unwinding the nonsense was borne by a federal district judge.  Yet, the problem created was not insubstantial, and I would guess at least a lawyer or two spent some time stewing over the potential damage that was being caused to their client.  The gentleman had filed an $11.5 million “judgment” of the federal postal court for registration in Connecticut against Ocwen Financial Corp.

In ordering that the “judgment” be stricken, among other choice nuggets, an actual federal court had to write that that the gentleman claiming to be a judge of the postal court had explained during a telephonic hearing:

that the Federal Postal Court operates on the basis of a sophisticated mathematical understanding of language that proves that certain mortgage documents are fraudulent.

The story also notes that there were dozens of similar filings made recently in Connecticut purporting to be judgments of this “court” which, uniquely, has no physical fixed location but happens to have “transitory jurisdiction wherever the federal postal eagle symbol may be.”

Just writing about this issue kind of makes me interested in having a beer with lunch.  If I do (I won’t), it would be a Belgian beer as a reminder of real, and much more consequential, problems and stressors that are out there in the modern world.