Comm'n for Lawyer Discipline v. Webster

676 S.W.3d 687

COMMISSION FOR LAWYER DISCIPLINE, Appellant,

v.Brent Edward WEBSTER, Appellee.

No. 08-22-00217-CV

Court of Appeals of Texas, El Paso.

July 13, 2023

James C. Harrington, Austin, Civil - Amicus Curiae for Texas Lawyers and Lawyers Defending American Democracy.

Amanda Kates, Royce LeMoine, Austin, Michael Graham, for Appellant.

Christopher Hilton, Judd E. Stone II, for Appellee.

Before Rodriguez, C.J., Palafox, and Soto, JJ.

OPINION

YVONNE T. RODRIGUEZ, Chief Justice

In wake of the 2020 presidential election, the State of Texas attempted to sue several states for purported violations of the Electors Clause. 84 professional-misconduct grievances against the Texas-licensed attorneys on the pleadings followed. One such grievance was against First Assistant Attorney General, Brent Edward Webster. In this case arising from that complaint, the Commission for Lawyer Discipline (the Commission) appeals the trial court's grant of Webster's plea to the jurisdiction. We reverse.¹

BACKGROUND

A. The attorney-discipline process in Texas

The Texas Supreme Court supervises the conduct of attorneys admitted to practice in Texas. TEX. GOV'T CODE ANN. § 81.072(a). To advance this power, the Texas Legislature enacted the State Bar Act, which, among other things, created the State Bar of Texas to aid the Texas Supreme Court in regulating the practice of law, including by overseeing attorney discipline. See id. §§ 81.001 et seq.

The Commission is a standing committee of the State Bar that administers the Texas attorney-discipline system. Id. § 81.076. The Commission also selects and oversees the Office of Chief Disciplinary Counsel (CDC), which represents the Commission in attorney-disciplinary litigation. Id. § 81.076(g). The CDC administers the State Bar's grievance procedure as outlined in the Texas Rules of Disciplinary Procedure. Id.

Every attorney admitted to practice in Texas is subject to the Texas Disciplinary Rules of Professional Conduct and Texas Rules of Disciplinary Procedure, both promulgated by the Texas Supreme Court. Id. §§ 81.072(b), (d) ; see id. § 81.071 ("Each attorney admitted to practice in this state ... is subject to the disciplinary and disability jurisdiction of the supreme court and the Commission for Lawyer Discipline, a committee of the state bar."). These rules define proper professional conduct and provide the mechanism by which grievances are processed, investigated, and prosecuted. Commission for Lawyer Discipline Annual Report, State Bar of Texas, Overview of the Attorney Discipline Process 13 (2022), https://www.texasbar.com/AM/Template.cfm?Section=Content_Folders&ContentID=57786&Template=/CM/ContentDisplay.cfm.

Anyone may file a grievance against a Texas attorney by filing a written form with the CDC, which initiates the attorney-disciplinary process. TEX. RULES DISCIPLINARY P. 1.06(R); Comm'n for Lawyer Discipline v. Stern , 355 S.W.3d 129, 134 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). Upon receiving a grievance, the CDC must first classify it as either a complaint or an inquiry. TEX. RULES DISCIPLINARY P. 2.10. If the grievance alleges professional misconduct on its face, it is classified as a complaint and sent to the lawyer for a response. Id. ; TEX. RULES DISCIPLINARY P. 106(G). If not—i.e. , if the grievance alleges conduct that, even if true, does not constitute professional conduct—it is classified as an inquiry and dismissed. TEX. RULES DISCIPLINARY P. 2.10. However, the person who filed the grievance may, within 30 days, appeal the CDC's classification decision to the Board of Disciplinary Appeals (BODA). Id. If BODA reverses the classification decision, the grievance is sent back to the CDC, where it is processed as a complaint. TEX. RULES DISCIPLINARY P. 7.08(C).

Once a grievance is classified as a complaint, the respondent attorney has 30 days from its receipt to respond to the allegations. TEX. RULES DISCIPLINARY P. 2.10. The CDC must then determine whether there is just cause to believe professional misconduct has occurred and, if so, proceed with the complaint within 60 days of the attorney's response deadline. TEX. RULES DISCIPLINARY P. 2.12. As part of its investigation, the CDC, with the Committee chair's approval, may convene an investigatory panel and issue subpoenas to determine whether just cause exists. Id.

If the CDC determines there is no just cause to proceed on a complaint, the case is presented to a summary disposition panel, which then makes an independent determination regarding just cause. TEX. RULES DISCIPLINARY P. 2.13. However, if the CDC (or the summary disposition panel) determines there is just cause, the CDC notifies the attorney of conduct it contends violates the disciplinary rules and the purported rule violations. TEX. RULES DISCIPLINARY P. 2.14(D). The attorney has 20 days to notify the CDC whether he elects to have his case heard before an evidentiary panel of the grievance committee or by a district court, with or without a jury. TEX. RULES DISCIPLINARY P. 2.15. If the attorney elects the district court option, the Commission must file its suit within 60 days of his election. TEX. RULES DISCIPLINARY P. 3.01. The Commission bears the burden to prove the allegations of professional misconduct by a preponderance of the evidence. TEX. RULES DISCIPLINARY P. 3.08.

B. Texas v. Pennsylvania

On December 7, 2020, the State of Texas attempted to invoke the original jurisdiction of the United States Supreme Court by suing the Commonwealth of Pennsylvania and the States of Georgia, Michigan, and Wisconsin. Counsel for Texas included Webster, Attorney General Ken Paxton (as counsel of record), and Lawrence Joseph, Special Counsel to the Attorney General of Texas. Specifically, the State of Texas filed:

• a Motion for Leave to File a Bill of Complaint,² attaching the Bill of Complaint and Brief in Support of Motion for Leave;

• a Motion for Expedited Consideration of the same;

• a Motion for Preliminary Injunction and Temporary Restraining Order or, Alternatively, for Stay and Administrative Stay;

• a Motion to Enlarge Word-Count Limit and Reply in Support of Motion for Leave to File Bill of Complaint; and

• a Reply in Support of Motion for Preliminary Injunction and Temporary Restraining Order or, Alternatively, for Stay and Administrative Stay.

First, Texas alleged that changes made by non-legislative actors to the defendant States’ election procedures in light of the COVID-19 pandemic violated the Constitution's Electors Clause. U.S. CONST. art. II, § 1, cl. 2. Second, Texas claimed these alterations created different voting standards within the States, which violated the "one-person, one-vote" principle enshrined in the Equal Protection Clause. U.S. CONST. amend. XIV, § 1. Finally, Texas alleged these alterations rendered election procedures fundamentally unfair in violation of the Due Process Clause. Id.

Texas argued it had standing to bring these claims because the defendant States purportedly injured two of Texas's interests: (1) its interest in who is elected as Vice President and thus can break Senate ties; and (2) its interest as parens patriae to protect the interest of its own electors. However, on December 11, 2020, the Supreme Court denied its motion for leave to file a bill of complaint for lack of standing, concluding "Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections" and dismissing all pending motions as moot. Texas v. Pennsylvania , ––– U.S. ––––, 141 S. Ct. 1230, 208 L.Ed.2d 487 (2020).

C. The grievance against Webster

After Texas filed Texas v. Pennsylvania , the CDC received 81 grievances against Paxton and three against Webster. All but four—three against Paxton and one against Webster—were ultimately dismissed. This case arises from the one remaining grievance against Webster.

The CDC received that grievance on March 11, 2021, from Brynne VanHettinga, an inactive Texas-licensed attorney. VanHettinga alleged the Texas v. Pennsylvania pleadings included, among other things, "manufactured ‘evidence,’ " "specious legal arguments," "unsupported factual assertions," "unfounded claims," and "conspiracy theories," and that Webster "violated [his] oath[ ] as [an] attorney[ ]" and a public servant. VanHettinga asserted Webster's conduct violated the Texas Disciplinary Rules of Professional Conduct, including Rule 3.01 (frivolous lawsuits and false statements), 3.03(a)(1) (false statement of material fact or law to a tribunal), 8.04(a)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 4.01 cmt. 5 (knowingly assisting a client in the commission of a criminal or fraudulent act).

The CDC initially classified VanHettinga's grievance as an inquiry and dismissed it as such. However, VanHettinga appealed the classification to BODA, which granted the appeal and reversed the initial classification, stating that the grievance alleged a possible violation of Rules 3.01 and 3.03. BODA thus returned VanHettinga's grievance to the CDC as a complaint for investigation and determination of just cause. The CDC notified Webster and requested his response. Webster responded,³ outlining the circumstances leading up to and legal theories behind the lawsuit, challenging VanHettinga's allegations, and raising defenses, including the separation of powers doctrine. Webster also submitted a supplemental response after VanHettinga amended her initial grievance.

The CDC then set the complaints against Paxton and Webster for a joint hearing before an investigatory-hearing panel in Travis County. Webster filed a motion to dismiss or alternatively to transfer venue of the panel and a motion to recuse panel members; however, the grievance committee chair denied the motions. On January 5, 2022, the grievance committee held the investigatory hearing, at which it heard testimony from the complainants. Webster did not appear or provide testimony, but he was represented by counsel who...