Professional Courtesy

Law360 has a report on an opinion of the Texas Court of Appeals, Third District holding that a complainant in an attorney discipline matter has no legal right to see Disciplinary Counsel’s recommendation for dismissal of the complaint.

Even if we were to conclude that Doe’s claims fall within this exception to sovereign immunity, however, Doe has failed to allege a legally cognizable interest in obtaining a copy of [Disciplinary Counsel] Acevedo’s recommendation. Doe argues that he “properly alleged his specific and legally cognizable interest affected by the State Bar Defendants’ actions.” However, Doe has asserted no statutory or other basis for his contention that he is entitled to a copy of Acevedo’s recommendation. He cites section 81.072 of the Government Code, which requires the Texas Supreme Court to establish standards and procedures that provide for a full explanation to each complainant on dismissal of a complaint. See Tex. Gov’t Code § 81.072(b)(2). Yet he points us to no statute or rule requiring or even authorizing the Chief DisciplinaryCounsel to provide the complainant with a copy of the recommendation to the summary disposition panel. It is undisputed that Rule 2.16 does not require disclosure, and we are unpersuaded by Doe’s argument that he is somehow entitled to disclosure merely because the confidentiality rule does not expressly prohibit disclosure to complainants.

Doe claims that Acevedo’s denial of his request for a copy of her recommendation has prevented him from being able to review Acevedo’s finding and evaluate how his complaint failed to meet the standard of just cause, “render[ing] futile any effort to correct [his] grievance in a new filing.” But he has cited to no authority, and we know of none, for the proposition that Doe has a statutory or common law cause of action encompassing the legal right to demand documentation from the State Bar Defendants in order to assist him in preparing a potential future complaint against an attorney. Even if we were to construe the confidentiality provision of Rule 2.16 as inapplicable to Doe, he has not alleged, nor can he allege, any legal basis supporting his right t0 access or view Acevedo’s recommendation to the summary disposition panel.

If Texas bar rules deny a complainant the right to see how the bar handled the complaint, those rules require immediate change. 

So long as lawyers enjoy the privilege of self-regulation, don’t bet on change.

Time for a public uprising demanding meaningful improvement of bar discipline. (Mike Frisch)