Recent Changes in the Grievance Procedure and How They Will Affect Your Law Practice

1. Recent Changes in the Grievance Procedure and How They Will Affect Your Law Practice Presented by: Robert S. �Bob� Bennett The Bennett Law Firm, P.C. 515 Louisiana, Suite 200 Houston, Texas 77002 (713) 225-6000 www.bennettlawfirm.com

3. Protecting the Public2005-06 Snapshot

4. Grievances Filed Compared with Attorney Growth

5. Thomas Watkins, Commission for Lawyer Discipline Member Estimates that every new attorney licensed after 1999 will have at least two disciplinary complaints filed against them during their career.

6. �As an attorney, Santos is presumed to be familiar with the provisions in the Rules of Disciplinary Procedure�� SANTOS v. COMMISSION FOR LAWYERS DISCIPLINE, 2004 WL 1116996 (Tex. App. �Houston [14th Dist.] May 20, 2004).

7. The Disciplinary System Prior to May 1, 1992 SBOT General Counsel serves as Prosecutor. Local Grievance Committees regulated lawyer behavior. Commission for Lawyer Discipline Established.

8. Who is the Client?&Who is the Attorney?

9. State Bar of Texas Attorney Disciplinary System

10. State Bar of Texas Changes to Attorney Disciplinary System

11. Phases of a Disciplinary Case Grievance Received OCDC has 30 days to determine if inquiry or complaint � TRDP 2.10 Not verified or by affidavit

12. Phases Classification Decision: Inquiry (grievance does not state a rule violation and therefore is dismissed; Complainant can appeal to BODA) (subjective determination of rule violation) TRDP 1.06 Definitions -or- Complaint (if true, grievance does state a rule violation and therefore continues through the disciplinary process)

13. Time Period for Determination OCDC � 30 days to determine if Inquiry or Complaint (no attorney input at this stage)

14. Phases � If Complaint Notice Sent - attorney receives copy of complaint and notice to respond TRDP 2.10 (no information regarding rules violation or specific change)

15. Time Periods Attorney: 30 days after receipt to respond to notice of complaint. TRDP 2.10

16. Importance of Full and Complete Response Hire expert witness Sworn statements and depositions Polygraph exam All relevant documents Consult knowledgeable attorneys Certificate of Good Standing Office of Law Office Management Review

17. Investigation to Determine Just Cause

18. Time Periods OCDC: 60 days after response to determine if just cause exists. TRDP 2.12

19. Phases Investigation of Just Cause - Investigator and/or attorney gathers facts from Complaint, Respondent, other persons with knowledge, documents, court records, etc. - Makes objective determination whether facts as discovered make it more likely than not that a rule has been violated (�Just Cause�)

20. Phases �Just Cause� � Standard of Proof - after a reasonable inquiry, would a reasonably intelligent and prudent person believe that the attorney has committed an act of professional misconduct

21. Phases No Just Cause - recommendation to dismiss taken to Summary Disposition Panel of Grievance Committee (volunteers comprised of 4 attorneys and 2 non-attorneys) - no testimony or additional investigation - by majority vote, Panel decides whether to dismiss or have case proceed - no appeal from dismissal

22. Before the Summary Disposition Panel, OCDC is Advocate for the Grieved Attorney All files to be destroyed after 180 days TRDP 2.13

23. Main Goal For Attorney How to help OCDC get case dismissed?

24. Amendments May Be Allowed After Initial Response

25. Interim Suspension If attorney poses a substantial threat of irreparable harm to clients or prospective clients � seek injunctive relief in District Court TRDP 2.14 B � Part XIV

26. Election Letter 20 days to decide � Evidentiary Panel or District Court (The second most important decision after full and complete answer)

28. EVIDENTIARY HEARINGSWHO IS PRESENT? PARTIES Commission for Lawyer Discipline vs. Respondent WITNESSES EVIDENTARY PANEL 4 Attorneys and 2 Public Members COURT REPORTER

29. EVIDENTIARY HEARINGS PROCEDURE Private Proceeding (unless public sanction imposed) County of Respondent�s Principal Place of Practice Opening Statement by Panel Chair �Formal� Presentation of Evidence Panel Members Deliberate and Vote Preponderance of the Evidence Findings of Fact Conclusions of Law Dismissal or Recommended Sanction Appeals to BODA

30. EVIDENTIARY HEARINGSSANCTIONS Private Reprimand Public Reprimand Fully Probated Suspension Partially Probated Suspension Active Suspension Disbarment Restitution Costs and attorneys� fees Other mandates (e.g., CLE, trust account audit, mentor reports, drug/psychological testing, etc.)

31. Greatest Risk of Evidentiary Hearings: Your panel is �kept, watered and feed�, by the OCDC.

32. DISTRICT COURT TRIALWHO IS PRESENT? PARTIES WITNESSES JURY and/or JUDGE MEMBERS OF THE PUBLIC COURT REPORTER

33. TRIAL DE NOVO � DISTRICT COURTPROCEDURE Public Proceedings County of Respondent�s Principal Place of Practice Judge (assigned by Supreme Court) from out of county Jury available if demanded Preponderance of the Evidence Case conducted, and appellate rights, just like any other civil case in district court

34. TRIAL DE NOVO � DISTRICT COURT SANCTIONS Same as Evidentiary Panel except no private reprimands available because of public nature of trial court

35. Annual Report Bar Year 04-05 05-06 Elected Evidentiary����...334���258 Defaulted into Evidentiary�...257���321 Elected District Court����.81���..86

36. Observations of New Grievance Procedures

37. The New System Increases Case Load of OCDC The Commission for Lawyer Discipline�s case load should increase from 200-300 annually to 2,000-3,000 annually Mark White, Chairman of the Commission for Lawyer Discipline -Texas Lawyer, October 2003 -

38. The fact that the Texas Legislature has taken an affirmative role in the disciplinary process is significant in and of itself, and could lead to further changes in subsequent legislative sessions. Stanley Serwatka, Vice Chairman of the Board of Disciplinary Appeals (BODA) - July 2003 - May See More Legislative Changes

39. �Texas has one of the most complicated and expensive systems for handling grievances in the country.� Thomas Watkins, Commission for Lawyer Discipline Member

40. Expensive - Lawyers are spending $8 million a year to handle around 9,000 inquiries. Thomas Watkins, Commission for Lawyer Discipline Member

41. Summary of Evidentiary Hearing Private reprimand only available if Evidentiary Hearing is chosen Rocket Docket, compared to civil trial Limited discovery Private unless public reprimand Prosecution oriented

42. Civil Trial Rules of Civil Procedure & Evidence apply Option for jury trial No private reprimand available More expensive

43. Attorneys are often surprised by the way they are treated by the OCDC

44. II.Top Ten Rule Violations

45. Advertising & Solicitation � 1%

46. Tribunals � 2%

47. Non-Client Relationships � 3%

48. Conflicts � 3%

49. Fees � 6%

50. Communication � 8%

51. Integrity � 9%

52. Safeguarding Property � 11%

53. Declining or Terminating Representation � 11%

54. Neglect � 46%

55. Complaints by Area of Practice 2002

56. Respect For The COURT&Respect For The TRIBUNAL

58. III.Recent Cases

59. Pro Bono-Turned-Contingent Fee Case Results in Reprimand Texas Lawyer October 23, 2006 Houston�s 1st Court of Appeals found in McCleery v. Commission for Lawyer Discipline that an attorney violated Rule 1.01(a) of the Texas Disciplinary Rules of Professional Conduct by charging an �unconscionable fee� by changing the nature of the attorney-client fee arrangement just prior to trial.

60. Immigration Imbroglio: Boyar & Miller Missed Immigration Filing Deadline, Workers Claim Texas Lawyer October 16, 2006 Houston�s Boyar & Miller faces seven recently filed malpractice suits alleging the firm missed an April 2001 immigration filing deadline, which has serious consequences for dozens of current and former employees of the Caf� Express restaurant chain.

61. Hall v. White Getgey & Meyer Co. LPA Texas Lawyer October 2, 2006 The post-judgment interest rate of judgments in federal courts is governed by federal statute, while pre-judgment interest in a diversity case is governed by applicable state law.

62. Investors Allege Strasburger Aided Clients� Fraud Texas Lawyer September 25, 2006 Dallas-based Strasburger & Price is embroiled in a class action suit in which the firm and one of its partners are accused of helping clients defraud hundreds of investors through what the plaintiffs allege was an �oil and gas Ponzi scheme.�

63. Hall v. White, Getgey, Meyer Co., LPA 5th Cir. September 20, 2006 The post-judgment interest rate for judgments in federal courts is governed by federal statue, while pre-judgment interest in a diversity case is governed by applicable state law. 5th U.S. Circuit Court of Appeals, 04-50707

64. The Seven-Year War: Former Clients to Continue Fighting Firm Over Leagal Fees Texas Lawyer September 18, 2006 A Houston attorney�s long-running legal battle with a former client over attorney�s fees has increased the $30,000 originally in dispute to more than $300,000 � and there�s no end in sight for the litigation.

65. Haden v. Sacks Tex. App. Dist. 1 September 7, 2006 Haden offered no evidence that he sustained damages; therefore, the trial court properly rendered summary judgment in favor of the law firm on the DTPA and fraud claims, and the breach of fiduciary duty counterclaims. Houston�s 1st Court of Appeals, 01-01-00200-CV

66. Bergenholtz v. Cannata Tx. App. Dist. 5 August 17, 2006 The minimum-contacts analysis focuses solely on the actions and reasonable expectations of the defendant, not where a defendant directed a tort. The court finds that Cartlidge is not controlling here. Dallas Court of Appeals, No. 05-05-01288-CV

67. Fred Baron Sues the Firm He Founded Almost 30 Years Ago Texas Lawyer August 14, 2006 Dallas lawyers Fred Baron and Lisa Blue, who sold their equity interest in Baron & Budd to shareholder Russell Budd in 2002, filed a breach of contract suit on Aug. 3 alleging Budd, the firm and others conspired to deny them payments due under the sale contracts.

68. Doe v. Roberts Tx. App. Dist. 5 August 7, 2006

69. Punishment Receives �Unacceptable� Rating Texas Lawyer June 26, 2006 An eye-catching billboard headlined �The Texas Justice Massacre� erected near the Bexar County Courthouse in downtown San Antonio takes aim at an unnamed attorney.

70. Newton v. Calhoun Tex. App. Dist. 8 June 8, 2006

71. Belt and Murphy, Joint Independent Executrixes of the Estate of Terk v. Oppenheimer Blend, Harrison & Tate, Inc., et al. Texas Lawyer May 15, 2006 The estate�s personal representatives may bring a legal malpractice claim on behalf of the estate in their capacity as personal representatives.

72. Plane Trouble: Former Client Perot Sues Hughes & Luce Texas Lawyer May 15, 2006 H. Ross Perot Jr., his real estate company and now-defunct museum have sued Hughes & Luce, claiming the firm breached its fiduciary duties and was professionally negligent in representing the plaintiffs in the aborted purchase of two supersonic training jets.

73. Peisner Johnson Co., L.L.P. v. Eagle Contruction and Environment Services, L.P. Tex. App. Dist. 11 May 11, 2006 The Legislature intended to encourage the removal of hazardous wastes and, therefore, exempted these services from the state�s sales tax. Eastland Court of Appeals, No. 11-05-00226-CV

74. 2nd Court Rethinks its Decision in Contingent-Fee Case Texas Lawyer July 5, 2004 Last year, Fort Worth�s 2nd Court of Appeals waded into an unusual contingent-fee dispute and in a 2-1 opinion found that a prominent Dallas plaintiffs firm�s attempts to recover that fee from a former client were �unconscionable as a matter of law.�

75. Final Thought We should expect an increase in the number of grievances going to evidentiary panels and district court You should take any grievance or correspondence with the OCDC very seriously

77. IV. Helpful Hints Reporting actionable/grievable conduct: 1-800-932-1900 or www.TexasBar.com Ethics Opinion � Ethics Hotline: 1-800-532-3947 or www.TexasBar.com No written opinion � but can send letter of confirmation as to what you were told. Client Security Fund � through office of Chief Disciplinary Counsel � Grievance must be filed. 1-877-953-5535 Maureen Ray, Brochure � www.TexasBar.com

78. Helpful Hints Cont. Referral Option � handled by CAAP when case dismissed. Client Attorney Assistance Program (CAAP) �In 2005-2006 CAAP contacted 54,152 Resolution: 1,131 w/o formal action Major Complaint: Neglect & Communication Advertising Review Committee Texas Lawyers Assistance Program Commission for Lawyer Discipline Annual Report 2005-2006 � www.TexasBar.com/cdc

79. V. Recent Decisions McClerry vs. Commission for L.D. attorney violated 1.04(a) TRDTPC by charging an unconscionable fee and by changing the nature of the attorney-client fee arrangement just prior to trial. Immigration Mess: Houston�s Bagar and Miller