Plaintiff appeals Texas appellate court ruling favoring the State Bar of Texas

By Vimbai Chikomo | Jan 5, 2016

AUSTIN -- A Texas plaintiff has decided to appeal a ruling by a Texas appellate court affirming the decision that the state’s Commission for Lawyer Discipline is not required to disclose recommendations to complainants who file grievances against Texas attorneys. The Petition for Review is pending before the Supreme Court of Texas.

“It is disappointing to me,” Gaines West, a partner at West, Webb, Allbritton & Gentry PC told the SE Texas Record.

“I believe the Bar (Commission for Lawyer Discipline – CFLD) and the Chief Disciplinary Counsel -- CDC) should want to make the system of attorney grievance governance as transparent to the complainant as possible,” he said.

Back in October, the Third Court of Appeals in Austin rejected the argument made by West’s client, a John Doe client, that he had the right to see the recommendation by the State Bar of Texas’ Chief Disciplinary Counsel against a sanction in the plaintiff’s grievance case. In its decision, the appellate court stated that there “was no reversible error in the trial court’s judgment.”

In a trial court held in the 126th District Court in Travis County, Doe sought to obtain a copy of the recommendation made by Disciplinary Counsel Linda Acevedo to the summary disposition panel, which he claimed he was entitled to.

The defendants filed a motion to dismiss for lack of jurisdiction, arguing that they are protected by sovereign and statutory immunity, that Doe “alleged no actual injury and lacked standing, and that the trial court could not intervene in the disciplinary process, which the Texas Supreme Court has authority to regulate.”

The defendants also asserted that Rule 2.16 of the Texas Rules of Disciplinary Procedure requires staff to maintain the con?dentiality of disciplinary proceedings and associated records. Therefore, Doe could not receive the requested information.

The trial court agreed and granted the defendants’ motion to dismiss the complaint and held that Doe’s allegation lacked a legal standing because he did not highlight any statute or rule requiring the counsel to provide complainants with a copy of the recommendation.

West said his whole argument (besides the technical issues dealing with Sovereign Immunity) focused on the fact that the complainant initiated the grievance process by filing a grievance complaint against a lawyer.

“And to say that all that the CDC does about that complaint (to determine if Just Cause exists to pursue the grievance complaint) is confidential as to the complainant, doesn’t make sense, and doesn’t follow the law,” West added.

In his argument before the Third Court of Appeals, West asserted that following the CDC’s argument creates a “secret place” for them to make decisions.

“I don’t believe that is what the law calls for, and in fact, I believe the opposite is quite clear – as I noted in our Petition for Review. Instead, the law requires that the complainant be given specific reasons why the grievance complaint was turned down,” West said.

West said that he believe the CDC resists disclosing the reasons for finding that no just cause exists because “they would rather have more latitude, without scrutiny from anyone, by making those decisions in their very own Star Chamber.”

“I believe in open government, and I think such action violates the precepts of open government, and I believe that opening their (CDC’s) decision-making to the complainant who began the whole process will aid in restoring the public’s confidence in continuing to allow lawyers to discipline their own,” he said.

West explained that most complainants get a letter from the CDC months after they have filed their complaint with the explanation that their complaint has been reviewed and dismissed, that the reason it was dismissed is confidential, and the decision is final and not appealable.

As for the nature of the grievance filed by his client, West said, “My client is a member of a public body who asserts that the attorney hired by the whole body is choosing to represent only a few on it, rather than the body as a whole.”

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