Texas Dismisses Election Challenge Ethics Charges
The Texas Supreme Court has dismissed ethics charges against a state officer in connection with litigation challenging the 2020 election results, concluding that separation of powers doctrine precluded the prosecution
In the aftermath of the 2020 presidential election, the State of Texas moved for leave to invoke the U.S. Supreme Court’s original jurisdiction to sue four other states. Attorney General Ken Paxton was the counsel of record, and Brent Webster, the attorney general’s first assistant, appeared on the initial pleadings. An individual with no connection to the underlying litigation filed a grievance with the Commission for Lawyer Discipline, alleging that Webster’s participation violated Texas Disciplinary Rule of Professional Conduct 8.04(a)(3). That rule prohibits lawyers from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.” The commission ultimately agreed, identifying six statements in the initial pleadings that, it contends, violate the rule. It filed a lawsuit seeking to hold Webster to account for those statements. The district court dismissed the case on the ground that exercising jurisdiction over the commission’s lawsuit would violate the Texas Constitution’s separation-of-powers doctrine. The court of appeals reversed. We agree with the district court and reinstate its judgment of dismissal.
Generally, scrutiny of statements made directly to a court within litigation is by the court to whom those statements are made. Such a court has substantial authority and many tools to address alleged violations of professional disciplinary (and other) rules, which apply to all Texas lawyers, including the attorney general and his staff. Lawyers who submit to a court’s jurisdiction subject themselves to that court’s authority to compel adherence to the highest standards of professional conduct.
But this case involves no such direct scrutiny. The U.S. Supreme Court neither imposed discipline on the first assistant nor referred him (or anyone else) to the commission (or any disciplinary body). Rather, the commission’s lawsuit arose from outside the litigation in which the challenged statements were made. We doubt that its collateral use of Rule 8.04(a)(3)—as opposed to direct review by the court to whom the statements are made—is a proper way to scrutinize the contents of initial pleadings of any attorney. What makes this case different from ordinary litigation, though, is its constitutional dimension. By second-guessing the contents of initial pleadings filed on behalf of the State of Texas, under the attorney general’s authority, the commission has intruded into terrain that this Court’s precedent has described as belonging to the attorney general.
Specifically, the Texas Constitution endows the attorney general (and at his direction, his first assistant) with the authority both to file petitions in court and to assess the propriety of the representations forming the basis of the petitions that he files—authority that, as our cases reflect, cannot be controlled by the other branches of government. At the same time, the Constitution endows the Court with the judicial power to discipline attorneys admitted to its bar. The potential for direct scrutiny by a court to whom representations are made wholly accommodates the legitimate interests of all branches of government. Were we to hold otherwise and instead allow collateral attacks like the commission’s lawsuit, we would improperly invade the executive branch’s prerogatives and risk the politicization and thus the independence of the judiciary. We decline to stretch the judicial power beyond its constitutional boundaries.
Accordingly, the Chief Disciplinary Counsel was right to have initially declined to pursue the matter, and the Board of Disciplinary Appeals was wrong to have reversed course. Likewise, the trial court was right to have dismissed the commission’s lawsuit, and the court of appeals was wrong to have reversed that determination. We therefore reverse the judgment of the court of appeals and reinstate the trial court’s judgment of dismissal for lack of subject-matter jurisdiction.
Above the law
First—and to reiterate yet again—the first assistant claims no entitlement to violate any disciplinary rule. We authorize no such entitlement, either. All lawyers are bound by the rules. The judiciary remains fully capable of vindicating breaches in any context. In the narrow circumstance before us, however, we conclude that the separation of powers requires that violations of the sort alleged here—based wholly on representations in initial pleadings—must be addressed directly by the court to whom the pleadings are presented rather than on the commission’s purely collateral review. The substance and application of the rules remains fully intact, and so does our separation-of-powers precedent.
If they say it, it must be so.
This Court, moreover, will remain the final check if courts improperly impose or, in egregious cases, refuse to impose discipline. See Jackson, 21 Tex. at 672–73. The worthy goal of the State Bar Act and its many revisions is to streamline and systematize the disciplinary system such that resort to the courts’ inherent authority becomes less and less necessary. But the authority itself remains. The judicial branch, and this Court, remain fully capable of redressing whatever concerns may arise that would otherwise threaten the independence, integrity, or impartiality of the judiciary. Vindicating our power to “regulate the practice of law in Texas for the benefit and protection of the justice system and the people as a whole,” Nolo Press, 991 S.W.2d at 769, does not depend on allowing the commission to bring lawsuits like the one it initiated here.
JUSTICE BOYD filed a dissenting opinion, in which Justice Lehrmann joined.
This disciplinary proceeding against Texas attorney Brent Webster could easily fail for many reasons. But the constitutional separation of powers is not one of them. This doctrine prohibits the legislative, executive, and judicial “departments” from exercising “any power properly attached to either of the others.” TEX. CONST. art. II § 1.2 It does not separate powers that exist within a single department or restrict the means by which a department may exercise a power it properly possesses. Perhaps some other legal doctrine could prohibit the judicial branch from doing “collaterally” that which it can indisputably do “directly” (to use the Court’s new-found terminology), but the separation of powers between the branches does not. If (as the Court concedes) the judicial branch has inherent power to discipline an executive-branch attorney for engaging in professional misconduct, it may—consistent with the separation-of-powers doctrine—discipline that attorney through any lawful exercise of that power. The Court’s freshly minted direct/collateral distinction is unheard of in separation-of-powers jurisprudence. It lacks both legal support and logical sense. I must respectfully dissent.
This case pits the executive branch’s power to represent the state in litigation, as exercised through the attorney general and his assistants, against the judicial branch’s power to regulate the practice of law, as exercised (initially) through the state bar and the commission for lawyer discipline. In broad terms, the issue is this: If the executive branch possesses the exclusive power to represent the state in litigation and to exercise broad discretion “regarding the filing of a suit,” Agey, 172 S.W.2d at 974 (citation omitted), may the judicial branch discipline an executive-branch attorney who violates a disciplinary rule in the exercise of that discretion? The Court concedes the answer is Yes, agreeing that the Texas Disciplinary Rules of Professional Conduct “apply to all Texas lawyers, including the attorney general and his staff.” Ante at 2.
I agree. To be sure, the judicial branch’s power is not unlimited. But neither is the executive branch’s power, including that exercised by the attorney general and his assistants. As we just recently confirmed, their “authority to represent the state . . . does not necessarily include the authority to independently decide whether to institute a suit on the state’s behalf.” State ex rel. Durden v. Shahan, 658 S.W.3d 300, 303 (Tex. 2022) (per curiam). Nor do they have unlimited power to decide what to assert, or not assert, within a suit they file.10 Both the legislative and judicial branches may control the contents of the attorney general’s pleadings by, for example, prohibiting claims and allegations that are “groundless and brought in bad faith” or “groundless and brought for the purpose of harassment,” or “fictitious,” or “false.” TEX. R. CIV. P. 13; see TEX. CIV. PRAC. & REM. CODE § 9.011. As the Court agrees today, the judicial branch can scrutinize the contents of the attorney general’s pleadings and impose discipline if they are “objectionable, whether for legal or ethical reasons.” Ante at 30. In short, the separation of powers does not prevent the judicial branch from regulating the pleadings an executive-branch attorney files in a court.
But the Court announces today that the separation of powers limits the means by which the judicial branch can perform such regulation. According to the Court, the judicial branch may act through its courts to engage in “[d]irect scrutiny within the judicial process” without violating the separation of powers, id. at 28, but may not act through its commission to address misconduct by “collaterally” reviewing pleadings filed by the attorney general or his assistants, id. at 37. Although the Court asserts that it merely “reaffirm[s] this core constitutional principle,” id. at 30, it cites no authority—from this Court or any other—that has recognized the direct/collateral distinction it describes today. That, of course, is because it can’t. Until today, no court has ever held that the separation of powers prohibits the judicial branch from regulating the practice of law by one lawful means when it permits the branch to have the same effect by another.
The dissent laments the majority’s “disdain” for the disciplinary processes
Regrettably, the Court’s opinion seems to reflect a level of disdain or distrust for the commission, or at least for the disciplinary rules and processes that govern the commission’s role. The Court “doubt[s],” for example, that the commission should ever be able to use Rule 8.04(a)(3) “to scrutinize the contents of initial pleadings of any attorney,” ante at 2, and it is particularly troubled that the commission can initiate such scrutiny based on a complaint filed by someone who “does not reside in Texas,” is not an active Texas attorney, and “has no connection to the underlying litigation,” id. at 4–5. Yet as the Court concedes, the commission in this case followed the very process “prescribed by the Texas Rules of Disciplinary Procedure,” id. at 5, which this Court adopted. If we are dissatisfied with the process we ourselves created, we should change it, not declare portions constitutionally inapplicable, case-by-case, based on principles we make up as we go along.
Extent of the damage
Fortunately, despite the Court’s many broad statements about the separation of powers, the Court’s powers, the commission’s powers, and the attorney-discipline process, its actual holding in this case is very narrow: Under “the narrow circumstance before us,” in which the First Assistant Attorney General filed an original action in the United States Supreme Court, the “separation of powers requires that violations of the sort alleged here—based wholly on representations in initial pleadings—must be addressed directly by the court to whom the pleadings are presented, rather than on the commission’s purely collateral review.” Id. at 43. By narrowing its holding in this manner, the Court at least reduces the damage it causes today to the attorney discipline process on which this Court relies to aid its exercise of the judicial branch’s inherent power to regulate the practice of law. Unfortunately, it does not reduce the damage it causes to the separation-of-powers doctrine.
I respectfully dissent.
(Mike Frisch)