Attorney can be disbarred despite completion of probation, high court rules

Steve Korris Jan. 6, 2009, 1:16pm

Texas Supreme Court

AUSTIN – Attorney Rolando Caballero successfully completed probation for criminal charges, but the state Board of Disciplinary Appeals can disbar him anyway, the Supreme Court of Texas has ruled.

On Dec. 19, 2008, seven justices affirmed Caballero's disbarment.

Two justices agreed with Caballero, who argued that lawyer misconduct rules mandated suspension instead of disbarment.

For the majority, Justice Paul Green wrote that the board had discretion to disbar or suspend Caballero. The board didn't abuse its discretion, he wrote.

In 2004, federal grand jurors indicted Caballero on charges of fraud by wire and mail.

By agreement, the government dropped the wire fraud charge and Caballero pleaded guilty to mail fraud.

A judge placed him on probation for five years and ordered $57,937.50 in restitution.

The Commission for Lawyer Discipline brought action against Caballero under special rules that apply to attorneys who commit intentional crimes.

In most misconduct cases a grievance committee or a district judge determines violations and imposes sanctions, but a crime triggers compulsory discipline.

In 2007, the Board of Disciplinary Appeals disbarred Caballero.

On appeal Caballero quoted Rule 8.06, stating that if a sentence is fully probated a license shall be suspended during the term of probation.

The Commission for Lawyer Discipline quoted Rule 8.06, which states that an attorney convicted of an intentional crime shall be disbarred unless the Board of Disciplinary Appeals suspends the license.

The majority pondered both rules and rejected the appeal.

"We do not accept Caballero's argument that Rules 8.05 and 8.06 mandate suspension in the case of a fully probated sentence because construing the rules in this manner would not give effect to the second half of Rule 8.05's language, which gives BODA discretion to use Rule 8.06," Green wrote.

"Caballero's proposed construction would render it 'mere surplusage,'" he wrote. "The rules must be read together."

Chief Justice Wallace Jefferson and Justices Nathan Hecht, Harriet O'Neill, Dale Wainwright, Scott Brister and Phil Johnson agreed with Green.

Justices Don Willett and David Medina dissented. By their reading of the rules, the board should have suspended Caballero's license.

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