State Bar of Texas, Office of Thief Disciplinary Counsel
“[I]t is a well-known problem that the [attorney]
disciplinary system does not work very well; in 1970, a
committee of the American Bar Association, headed by
retired Supreme Court Justice Tom Clark, described self-
regulation as a ‘scandalous situation,’ finding that a
‘substantial number of malefactors’ continue to practice
law. There is little evidence suggesting any notable
improvement since then.”
David Luban, Lawyers and Justice (Princeton Univ.
Press, 1988) at xviii, xxvi.
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Further reading
“I noticed recently that the
state bar's Office of Chief
Disciplinary Counsel is scouting
around for criminal defense
attorneys who should lose their
licenses over criminal
convictions, posting requests to
the prosecutors' user forum
asking for recommendations whose
bar license to pursue.”
Grits for Breakfast Law Blog,
Feb. 19, 2009.
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Robert Elder,
Texas State Bar's
Client Fund Provides Limited
Recourse. Austin
American-Statesman, Jun. 23,
2008 (Five-year, $2,8 million
renovation of OCDC headquarters
north of the state Capital
complex is higher priority than
replenishing fund to compensate
clients fleeced by their
attorneys)
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"The biases in, and misuses of, the grievance processes have the capacity and tendency
to undermine the high ideals of the legal profession. If those ideals are to pay more
than lip service to the goals of truth and justice, the biases should be eliminated and
. . . our grievance system needs to be better funded so that complaints can be more
thoroughly investigated by professionals who are paid for their time and do not have
hidden agendas."
Frank William McIntyre,
Whose Interests Does Texas' Disciplinary Process Protect?
Tex. Law., (August, 2002)
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12/18/2009 update: Houston Chronicle features story regarding Texas OCDC at suggestion of
KnowYourCourts.com:
Two days ago, while discussing the Houston Chronicle story on
former judge Nottingham by phone with reporter Lise Olsen, I suggested that they run a story on
our work in getting the gag rule abolished from the Texas Disciplinary Rules. See my June 16, 2009
entry below. Lise referred the story to Rick Casey, who ran the story today:
http://www.chron.com/disp/story.mpl/metropolitan/casey/6776298.html.
As I reported below, in September, the Texas supreme court proposed changes to the rule, subject to a public comment period. Three comments were
submitted, including one by Tom Gordon of CLEAR, another by the Texas
Unauthorized Practice of Law Committee, and the third by me. None of the comments contained a general
objection to the rule. On December 7, the supreme court made the amendments final (click here).
Earlier today, Greenfield, wrote me:
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A reporter named Rick Casey from the Houston Chronicle interviewed me by phone today and said
to look for an article from him on the first page of their website tomorrow AM. He first called
Kennon Peterson and asked him how the changes to the Rules came about. She told him that a citizen
brought this to the Court's attention and then told him to contact me. I told Casey about your
website and gave you credit for knowing about the Louisiana Supreme Court case (in Re: Werner) that
made it possible for Kennon to analyze the matter so thoroughly, before taking it to the Justices.
Casey says he also spoke today with Chief Justice Jefferson, who told him that it's the first time
anyone brought this to their attention, and it needed to be changed, etc. I told this Casey all
about you, so hopefully he heard me on that.
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9/09/2009 update: As a direct and proximate result of KnowYourCourts.com contributor Gretchen Greenfield,
the Texas Supreme Court has adopted proposed rule changes eliminating the gag rule on complainants.
The complainant had provided me with periodic updates she received from the rules attorney over the last
several months and, just today, the rules attorney informed her of the order issued today.
These changes would not have occurred but for the persistence of Ms. Greenfield, and
KnowYourCourts.com. See the June 16th blog-entry below.
Prior to January 1, 2010 (when the rule changes become effective), Texas has been one of the few states that
imposed gag rules on complainants. And, as a result, the State Bar of Texas Office of Chief Disciplinary
Counsel was rated at a "D+" by HALT in its 2006 lawyer discipline report card. See
also Leslie C. Levin, The case for less secrecy in lawyer
discipline. Georgetown Journal of Legal Ethics, Vol. 20, No. 1, 2007; Renée E. Moeller,
The Grievance Process &
Confidentiality - A New Grievance Waiting to Happen (August, 2008)
June 16, 2009 update: - Texas Supreme Court vows to reevaluate confidentiality of lawyer discipline
process in response to efforts by KnowYourCourts.com and individual contributor
On April 21, 2009, I reported that the Louisiana Supreme Court had dismissed
disciplinary charges against two attorneys charged with violating bar rules imposing confidentiality of disciplinary
proceedings . The court held that the rule
violated the First Amendment as an unconstitutional content-based restriction of speech.
I notified another individual, who had a pending complaint before the OCDC about the Louisiana decision, In re
Warner, who in turn forwarded her grievances and the Warner decision to Kennon L. Peterson, a "Rules
Attorney" for the Supreme Court of Texas. When Peterson announced that she would research the matter, I then
provided Peterson with some pertinent secondary authorities.
Today, the other complainant received the following e-mail, indicating that the Supreme Court of
Texas has taken the matter under advisement and that the OCDC will be making immediate changes to
their illusory form letters:
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From:
Kennon.Peterson@courts.state.tx.us
sent: 6/16/2009 2:59:13 P.M. Central Daylight Time
To: GGreenfieldMT@aol.com
Subject: RE: Referred by Mr. Ted Wood
message text:
Ms. Greenfield,
Thank you again for your letter dated May 11, 2009. As I mentioned in my initial
response, you raised important questions that need to be thoroughly researched.
After reviewing your letter and the Office of the Chief Disciplinary Counsel’s
letter, I analyzed In re Warner, the history of Texas Rule of
Disciplinary Procedure 2.16, and the history and text of the American Bar
Association’s Model Rule for Lawyer Disciplinary Enforcement 16, which addresses
access to disciplinary information. I reported my findings to the Justices of the
Supreme Court of Texas. I also provided your letter, the Office of the Chief
Disciplinary Counsel’s letter, and In re Warner.
After considering the concerns you raised in your letter and my preliminary
research, the Court decided that it is time to re-analyze Texas Rule of Disciplinary
Procedure 2.16 and consider amending the provisions regarding the confidentiality of
disciplinary proceedings. The Court also decided that while this analysis is
underway, the Office of the Chief Disciplinary Counsel’s letter may need to be
revised to clarify the precise scope of confidentiality set forth in existing Texas
Rule of Disciplinary Procedure 2.16.
The Court will work with the Office of the Chief Disciplinary Counsel and the
Commission for Lawyer Discipline to address these matters. I will promptly inform
you of any changes to the Office of the Chief Disciplinary Counsel’s form letter or
the text of Texas Rule of Disciplinary Procedure 2.16. In the meantime, please do
not hesitate to contact me again if you have additional questions and concerns.
Once again, thank you for your input regarding disciplinary proceedings in Texas.
Best regards,
Kennon
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April 9, 2009 update:
According to an
April 9, 2009 e-mail from
Bech Bruun, Chief of Staff and general counsel
for
Todd Hunter, R-Corpus Christi
(Chair of the
Judiciary & Civil Jurisprudence Committee):
I spoke this morning with Linda Acezedo [sic.] at
the OCDC. I am told there is no prohibition against a
complainant copying a public official on correspondence
directed to the OCDC regarding a grievance.
The foregoing was in response to a complainant, who
submitted a request to show cause why the form letter issued by the OCDC
to complainants should not be construed to mean that a complainant is gagged from discussing the
handling of a complaint with Judiciary and Civil Jurisprudence Committee members.
Attention Complainants: Comments and observations
In light of the specious dismissals (below), certain patterns have emerged:
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Under the Texas
Rules of Disciplinary Procedure:
“Grievance” means a written statement, from whatever source, apparently
intended to allege Professional Misconduct by a lawyer, or lawyer Disability, or
both, received by the Office of the Chief Disciplinary Counsel.
However, according to the Board of Disciplinary Appeals,1 a "grievance"
encompasses any and every communication by a unique complainant regarding the same
respondent-attorney for the duration of the complainant's life. So, when asked if a
respondent-attorney "stabs me in the gut six months from now," BoDA stated that a grievance
concerning that matter would be considered an amendment to any previously filed grievance.
Rule 2.10 provides, in pertinent part:
If the Board of Disciplinary Appeals affirms the classification as an Inquiry, the
Complainant will be so notified and may within twenty days amend the Grievance one
time only by providing new or additional evidence.
The language of the rules notwithstanding, the OCDC applies the foregoing ad hoc definition
of "grievance" and an ad hoc interpretation of Rule 2.10 to reject any future grievance
concerning an unrelated matter by decreeing, "Section 2.10 of the Texas Rules of
Disciplinary Procedure provides that, following a dismissal of a grievance, a Complainant
may amend and re-file his or her statement with new information one time only. You have
filed x times previously to this one."2
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When a complaint against opposing counsel is
filed, it is axiomatically denied. The handling of differentiating complaints (below)
clearly indicates that complaints are not read (except to note the complainant, the
respondent attorney, and the relationship between the two).3
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If a complainant files an appeal with the Board of Appeals, the appeal is
often granted. This
provides the illusion to the complainant that the complaint has been given due
consideration. In fact, the complaint is merely returned to the local disciplinary counsel
office, where it is fast-tracked to a "summary disposition panel" for dismissal (complaints
not selected for dismissal are not routed to the panel).4 The committee meets in
secret.5 There is no opportunity to present evidence, call or cross-examine
witnesses or be provided with findings-of-fact or conclusions-of-law. When a case is
referred to the Summary Dismissal panel, the OCDC advocates on behalf of the accused
attorney to have the case dismissed.6 The decision of the panel is final and
is not subject to review.7
Thus, the outcome is identical to the axiomatic dismissal of the initial complaint and the discretion to dismiss
lies solely with the local office of chief disciplinary counsel.
________________________
1 source: Jackie Truitt, Board of Disciplinary Appeals
2 source: John M. Richards, Office of Chief Disciplinary Counsel lead investigator
3 And see Shaun Sanders complainant statement, "There was a charge of judicial
misconduct filed against attorney Easterling to the State Bar of Texas -- Houston Region.
It was declined and there was the option of resubmitting additional information. More
information was submitted. However, they return the exact same denial letter with a
difference only in reference number and investigator." And see here (another case) and here and here and here and here.
4 source: Jhoslyn Hood, Dallas office of chief disciplinary counsel
5 source: Gary Nation, Dallas office of chief disciplinary counsel
6 source: Renee E. Moeller, Are the Texas
Disciplinary Rules of Professional Conduct Meant to be Punitive in Nature? (quoting Office of Chief
Disciplinary Counsel, Houston Regional Office Disciplinary Counsel, Brian Schaffer – HBA CLE Seminar, Houston,
February 18, 2005)
7 See Tex.R.D.P. 2.13; 2.11.
Here are a few of the
good folks who are working hard to protect
Texans from unethical attorneys, as the responses to
and disposition of complaints (below) demonstrate:
4-09-2009 Grievance (by complainant Gretchen, who withheld her
last name for publication here, denouncing deceptive and illusory Texas OCDC practices)
5-29-2009 Memorandum to Todd Hunter (re: State Bar of Texas OCDC;
by complainant Gretchen, who withheld her
last name for publication here, denouncing deceptive and illusory Texas OCDC practices)
in re Madeline Wilson
What public policy
interest is served by exempting from discipline and
accountability an attorney who aided and abetted
a client's fraud, conspired to unlawfully conceal a minor child
across state lines, knowingly violated court orders,
falsely testified under oath, withheld material information from a tribunal that she was required
to provide, purposefully misled a tribunal, and submitted false written statements during the course
of a disciplinary investigation?
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Grievance memoranda |
State
Bar Response |
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4-08-2009
Complaint (by
KnowYourCourts.com visitor, Minnesota resident Rob't Monk)
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4-09-2009 acknowledgement from Hazard
County good ol' boy, J.M. Richards
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3-02-2009 Appeal to Board of Disciplinary Appeals
1-21-2009
Complaint (by
KnowYourCourts.com visitor, Colorado resident Kris Stewart)
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4-15-2009 decision affirming
finding that attorney providing false statements during a
disciplinary investigation does not violate any of the Rules of Professional Conduct
3-23-2009 acknowledgement from
State Bar of Texas Office of Chief Disciplinary Counsel
2-13-2009 axiomatic Dismissal
by John M. Richards (signature by rubber stamp, not pen; opining that the filing of false
statements in an affidavit submitted to a Texas court and providing material false
statements during the course of a State Bar of Texas attorney disciplinary investigation is
not a "disciplinary rule violation on the part of the [respondent] lawyer").
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2-21-2009
Appeal to Board of Disciplinary Appeals
1-08-2009 Complaint (by
KnowYourCourts.com visitor, New York resident Brian J. Kenny)
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3-12-2009 acknowledgement from
State Bar of Texas Office of Chief Disciplinary Counsel
2-04-2009 axiomatic Dismissal by John M. Richards (signature by
rubber stamp, not pen; opining that the filing of false statements in an affidavit
submitted to a Texas court and providing material false statements during the course of a
State Bar of Texas attorney disciplinary investigation is not a "disciplinary rule
violation on the part of the [respondent] lawyer").
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3-23-2009 inquiry to Maureen Ray,
"Ombudsman" of the OCDC.
01-13-2009 Appeal to Board of Disciplinary
Appeals
12-15-2008 Complaint (IV)
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3-24-2009 Go-pound-sand memo from
Maureen Ray, "Ombudsman" of OCDC
12-17-2008 memorandum
of John M. Richards (erroneously asserting that this complaint
of making false statements of material fact during the course of an attorney disciplinary
investigation had been "filed four (4) times previously").
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5-19-2009 reply
3-06-2009 Inquiry
12-14-2008 UPL complaint
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5/19/2009 [non] decision from UPL
Committee
3/23/2009 acknowlegement /
update from UPL Committee chairwoman
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3-23-2009 inquiry to Maureen Ray,
"Ombudsman" of the OCDC.
12-15-2008 follow-up/inquiry
4-09-2008 report to Board of
Disciplinary Appeals (re, inter alia, information learned from extrinsic
source that ex-wife's Texas attorney sits on the summary disposition committee)
4-08-2008 memorandum (explaining
mix-up of case numbering)
3-11-2008 Complaint (III)
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3-24-2009 Go-pound-sand memo from
Maureen Ray, "Ombudsman" of OCDC
4-18-2008 memorandum from Board of
Disciplinary Appeals
4-02-2008 memorandum of
John M. Richards (erroneously asserting that Complaint had been "filed
three (3) times previously")
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11-30-2007 Reply,in
support of Complaint
11-14-2007
Answer,
by by
Madeline Wilson
9-07-2007 Amended Complaint
9-07-2007 Appeal to Board of Disciplinary Appeals
7-07-2007
Complaint (II)
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2-27-2008
Dismissal
10-16-2007 acknowledgment
of appeal outcome by
local office
9-24-2007 axiomatic Dismissal of Amended
Complaint
10-12-2007 Order (by Board of Appeals granting
appeal)
6-21-2007 axiomatic Dismissal
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8-25-2006
supplement
7-11-2006 supplement
6-12-2006 supplement
5-26-2006
Reply in support of Complaint
4-27-2006
Answer
by Madeline Wilson
4-24-2006
supplement
2-20-2006
appeal to Board of Disciplinary Appeals
12-16-2005 Complaint (I)
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9-28-2008
Dismissal
5-16-2006 memorandum
03-28-2006
acknowledgement of appeal outcome by local office
3-23-2006 Order (by Board of Appeals
granting appeal)
1-03-2006 axiomatic Dismissal
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** Please note that many of these documents are quite large and may take several minutes
(or more) to download.
.
State Bar of Texas, Texas State Bar, Office of Chief Disciplinary Counsel, Office of Chief Disciplinary Cousnel, OCDC, Texas, complaint, grievance, disability, misconduct, malconduct, lawyer, attorney, discipline, attorney regulation, Madeline Wilson, Madeline Elizabeth Wilson, Madeline E. Wilson, Madeline Hollis, Madeline Wilson Hollis, Law Office of Madeline Wilson, John M. Richards, State Bar of Texas, Office of Thief Disciplinary Counsel, J.M. Richards
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