For those individuals who dream of joining the noble legal profession and becoming an attorney, it is almost unimaginable to consider that at some point after completing four years of college, three years of law school, taking and passing a bar examination, and actually representing clients, there could be an allegation of professional misconduct—or worse, a finding of professional misconduct. While certain risk factors may increase the likelihood of an attorney being the subject of a grievance,[1] these are not necessarily synonymous with the type of conduct that results in the imposition of a disciplinary sanction. This article provides an overview of the Texas attorney disciplinary system, identifies conduct that may result in disciplinary action, and provides practical ideas for improving the quality of the legal services rendered and job satisfaction.

Overview of the Texas Attorney Disciplinary System
The conduct of attorneys practicing law in the state of Texas is governed by the Texas Disciplinary Rules of Professional Conduct (TDRPC). With authority from the Supreme Court of Texas and the Texas Legislature, the State Bar of Texas Office of the Chief Disciplinary Counsel (CDC) administers a disciplinary system for those whose conduct does not comply with the TDRPC.[2] The disciplinary system is a complaint driven process. Any person or entity including, for example, a current or former client, employee, spouse, witness, opposing counsel, judge, etc., may file a grievance against an attorney.[3]

Within 30 days after a grievance has been filed, the CDC makes an initial classification decision.[4] The CDC will either dismiss the grievance as an "inquiry"[5] or upgrade the grievance to a "complaint"[6] which requires a formal written response.[7] At this point, the attorney becomes the "Respondent."[8] For complaints, the CDC is obligated to investigate the allegation(s) and make a "just cause"[9] determination within 60 days.[10] Recommendations for dismissal are referred to a summary disposition panel for approval.[11] If the CDC determines that "just cause" exists to proceed forward, the Respondent is given the opportunity to elect a proceeding before an Evidentiary Panel comprised of volunteer attorneys and public members or a trial in district court.[12]

Evidentiary Panel proceedings are generally confidential until a public sanction is imposed.[13] These proceedings provide for the possibility of a private reprimand as a potential disciplinary sanction.[14] Evidentiary proceedings are less formal than traditional court trials and may not comply with the rules of civil procedure or evidence.[15] Evidentiary judgments may be appealed to the Board of Disciplinary Appeals, a 12-attorney tribunal, appointed by the Supreme Court of Texas.[16]

District court actions require the appointment by the Supreme Court of Texas of an active district judge who does not reside in the Administrative Judicial District in which the Respondent resides.[17] The district court action offers the option of either a bench or jury trial and adheres to traditional rules of civil procedure and evidence. Generally, a private reprimand is not an available disciplinary sanction.[18] A district court judgment may be appealed to the state appellate court.[19]

Upon the finding of just cause and the filing of the Evidentiary or District Court petition, the CDC represents the Commission for Lawyer Discipline (CFLD), referred to as the "Petitioner." The CFLD is a standing committee of the State Bar of Texas composed of twelve volunteer, non-paid members (six attorneys appointed by the President of the State Bar of Texas and six non-attorney members appointed by the Supreme Court of Texas).[20] The CFLD has the burden of proving a Respondent's violation of the disciplinary rule(s) at issue by a preponderance of the evidence.[21] If no professional misconduct is found, the case is dismissed. If there is a finding of professional misconduct, disciplinary sanctions that may be imposed range from a private reprimand,[22] public reprimand,[23] fully probated suspension,[24] partially probated suspension,[25] active suspension,[26] to disbar-ment.[27, 28] The CDC, as the prevailing party, routinely seeks attorney's fees and costs; however, these are discretionary to the panel or court.[29]

Avoiding the Top Five Alleged Disciplinary Rule Violations
The five most frequently cited rule violations alleged against Texas attorneys involve (1) neglect, (2) failure to communicate, (3) integrity issues, (4) circumstances surrounding the termination of representation; and (5) failure to safeguard client funds and property.[30]

Neglect
Neglect by attorneys is the most frequently alleged disciplinary rule violation, prompting 25 percent of all grievances. According to TDRPC 1.01(b):

In representing a client, a lawyer shall not:

1. neglect a legal matter entrusted to the lawyer; or
2. frequently fail to carry out completely the obligations that the lawyer owes to a client or clients.[31]

Neglect is further defined as "inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients."[32]

From a client's perspective, "neglect" may be something very different from the standard set forth under the TDRPC. Any perceived inattentiveness by the attorney may be viewed as neglect. Regardless of whether the impression is justified, the following actions, or inactions, by the attorney may lead to client dissatisfaction:

• Unavailability and unresponsiveness to client-initiated communications.
• Late arrival to appointments and court appearances.
• Perceived lack of case-specific knowledge or limited expertise.
• Apparent lack of commitment.
• Failure to listen carefully and explain clearly.
• Inattentiveness during client meetings.
• Procrastination.

An attorney can be proactive in warding off unnecessary grievances by:

• Regularly communicating with clients by promptly returning phone calls, responding to emails, providing status reports, sending detailed bills, etc.
• Using and maintaining a reliable calendaring/docketing system.
• Keeping detailed records of time spent on a case (regardless of whether it is an hourly, flat, or contingency fee case).
• During periods of inactivity, maintaining contact with clients and explaining how the inactivity benefits their case.
• Training attorneys and staff on professionalism, ethics, organization, and confidentiality.

Communication
Good client relationships begin with good communication. Attorneys' failure to communicate is the second most frequently alleged disciplinary rule violation, prompting 22 percent of all grievances. According to TDRPC 1.03:

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Client complaints that fall into this category focus on a complete lack of or lapses in communication, inadequate information, dissatisfaction with the representation, and/or a disappointing case outcome.

Communication is the cornerstone for being an effective advocate for the client. At the inception of the attorney-client relationship, it is important for the attorney to establish a clear and mutual understanding of the level of communication that is expected and will be maintained throughout the representation.

It is often insufficient to rely solely on oral communications with a client. Documenting the conversation in a follow-up letter or email not only gives the client a chance to review and reflect upon the information conveyed, but also establishes a solid record of compliance with the attorney's obligations under TDRPC 1.03.

Lack of adequate communication often stems from several root causes: (1) inattentiveness to cases perceived by the attorney as less important; (2) difficult or demanding clients; and (3) deficient office policies and staff training. Before undertaking the representation, a critical assessment of both the prospective client and the legal issues can help identify and circumvent potential problems. Clients will generally be at their best during the initial meeting. If presented with a difficult or needy client, the attorney should consider either passing on the representation or establishing clear boundaries and reasonable expectations. Clients who demand the most time from their attorneys are often the first to file grievances when they do not receive the attention they feel they deserve. Similarly, if a legal matter is not going to generate the fees to warrant the attorney's full interest and commitment, the attorney should not accept the representation. Disciplinary cases citing failure to communicate frequently result from undertaking a case at a discounted rate or as a "favor" to a friend, family member or colleague. Under these circumstances, an attorney may not follow customary formalities, feel less obliged to the client, and be less attentive, all of which may lead to the filing of a grievance.

Good office policies and procedures can reduce the likelihood that a client will complain about lack of communication. Written communications do not always have to include a substantive analysis or be a time consuming event. For example, forwarding pleadings or relevant documents, sending regular and detailed billing statements, and simple scheduling reminders, all build a record of the requisite level of communication. Once these basic practices are integrated into the office procedures they can be maintained with minimal effort.

Integrity
Integrity is at the very heart of our legal system as it is the foundation upon which trust depends. It is disconcerting that allegations of dishonesty, fraud, deceit, and misrepresentation is the basis for 13 percent of all grievances. Integrity is governed by TDRPC Part VIII and encompasses a broad range of conduct that extends beyond the attorney-client relationship including, specifically, compliance with regulatory requirements (e.g., application for admission, responding to disciplinary matters, reporting professional misconduct, etc.).

Some attorneys, unfortunately, simply lack the integrity to practice law. They may excel in school, but are missing core values in their moral compass. These attorneys will generally find their way into the disciplinary system.

Often, a violation of an integrity provision starts with a simple, inadvertent mistake. A pattern then may begin to emerge with a not-so-innocuous "white lie" to explain away the mistake, followed by carefully crafted statements or silent omissions, and then the blockbuster–a misguided attempt to "fix" the mistake that started the cycle. At that point, a multitude of disciplinary infractions overwhelm any notion of common sense and the acts that follow lead the attorney down the road to disbarment.

The scenario seems almost unimaginable to most attorneys; but it is the precipitating event, the inadvertent mistake, that may occur at some point in any busy legal practitioner's career. Generally speaking, remedies exist to address the most common mistakes (e.g., missing a deadline, failing to respond to a discovery request, inadvertent disclosure of confidential information, etc.). Acknowledging the mistake is crucial to avoiding integrity violations. It is the cover up–not the mistake–that violates the TDRPC. Candor is an essential part of explaining the circumstances to a client and the courts. Even if the client has a potential civil claim, there is no reason to fight the battle on two fronts by creating a separate claim for professional misconduct. Any attempt to conceal these facts from a client, to mislead a court, or to alter or destroy documents, will guarantee a significant disciplinary sanction and, more likely, the loss of the right to practice law. Inevitably, the truth will be revealed. Seeking advice from a partner or trusted colleague might often be the best first step when discovering a mistake has been made. An objective third party can help to dismiss any temptation to avoid the disclosure obligation.

Declining or Terminating Representation
Declining or terminating representation prompts slightly more than 12 percent of all grievances. TDRPC 1.15 sets forth the requirements for declining representation, or when representation has commenced, the circumstances under which withdrawal may or may not be accomplished. The part of the rule that is most often cited in grievances is the failure, or perceived failure on the part of a disgruntled former client, of the attorney to refund an unearned fee or to return the client file.

More often than not, if the circumstances giving rise to termination of representation predate the conclusion of the case, the client feels as if he/she did not receive the full benefit of the bargain and wants a refund. Attorneys should objectively evaluate each case upon conclusion of the representation to determine if any refund is due to the client. That evaluation should include a reasoned business decision about potential alternatives. For example, while the attorney may think no refund is due the client, the attorney should weigh against that the potential cost of defending a grievance. An untold number of attorneys have been introduced to the wrong side of the grievance process simply for being unwilling to part with a few hundred dollars–an amount much less than that required for presenting a grievance defense.

After-the-fact created time sheets or billing records are rarely considered persuasive evidence for proving that the fee was fully earned. An attorney should make every effort to promptly respond
to a request for the return of the client file.

Safekeeping Property
Failure to safeguard property is asserted in almost 12 percent of all grievances. TDRPC 1.14 prohibits commingling of attorney and client funds, prescribes the use of trust accounts, mandates prompt notification and delivery of funds to clients and third persons, requires attorneys to account for all funds received on behalf of clients and third persons, and imposes an obligation on the attorney to safeguard disputed funds.

This rule aims to protect the fundamental notion–lawyers do not steal or borrow their client's money. Violations of the safekeeping rule generally result in some of the harshest sanctions that the disciplinary system can assess. Unfortunately, the purpose of this rule has been diluted by the prosecution of attorneys for accounting errors, fee disputes which are non-disciplinary in nature, and third party collection claims.

Rules governing how to handle trust accounts sometimes can be tedious, requiring multiple transactions, additional trips to the bank, etc. For an attorney who is unable to balance a personal checkbook, balancing a trust account ledger can be a daunting task. Extra special care must be taken to comply with the rules. Employment of a bookkeeper or trained staff member may be a necessity. Trust account violations are among the easiest violations to prove. The bank records do not lie and must be in order. Even an unsupported allegation of a safekeeping violation may result in multiple rule violations once the CDC obtains the trust account records that show any irregularities.

Conclusion
The TDRPC provide the minimum standards of conduct expected for attorneys practicing in Texas. Failure to abide by these rules may be a result of intentional misconduct, lack of supervision, poor office procedures, or a host of other reasons. Physical or mental illness, emotional distress, substance abuse, and financial difficulties can be distracting and influence any attorney's ability to focus on client needs, running a law practice, and other professional obligations.

Whether an attorney grievance is based upon a genuine concern for the integrity of the profession, a valid complaint about legal services rendered, a fee dispute, or an attempt to gain an advantage in a civil or other claim, it must always be taken seriously. In each stage of the grievance process, there must be a clear and objective examination of the facts, circumstances, and mitigation involved; however, a failure to respond at any point in the proceedings will undermine
the attorney's credibility and guarantee that the matter will proceed to the next level.

Jennifer A. Hasley is a partner at HASLEY SCARANO, L.L.P. Her trial practice focuses primarily on professional responsibility, attorney disciplinary actions, disability issues and legal malpractice.

Endnotes
1. For example, attorneys in particular practice areas (e.g., criminal, family and personal injury law) are more likely to be the subject of a grievance. 2. TEX. GOV'T CODE §81.071, et seq. 3. "'Complainant' means the person, firm, corporation, or other entity, including the Chief Disciplinary Counsel, initiating a Complaint or Inquiry." TRDP 1.06F. 4. TRDP 2.10. 5. "'Inquiry' means any written matter concerning attorney conduct received by the Office of the Chief Disciplinary Counsel that, even if true, does not allege Professional Misconduct or Disability." TRDP 1.06S. 6. "'Complaint' means those written matters received by the Office of the Chief Disciplinary Counsel that, either on the face thereof or upon screening or preliminary investigation, allege Professional Misconduct or attorney Disability, or both, cognizable under these rules or the Texas Disciplinary Rules of Professional Conduct." TRDP 1.06G. 7. TRDP 2.10. 8. TRDP 1.06X. 9. "'Just Cause' means such cause as is found to exist upon a reasonable inquiry that would induce a reasonably intelligent and prudent person to believe that an attorney either has committed an act or acts of Professional Misconduct requiring that a Sanction be imposed, or suffers from a Disability that requires either suspension as an attorney licensed to practice law in the State of Texas or probation." TRDP 1.06U. 10. TRDP 2.12. 11. TRDP 1.06BB and 2.13. 12. TRDP 2.14 and 2.15. 13. TRDP 2.16A(2)(a). 14. TRDP 1.06Y(8). 15. TRDP 2.17. See, for example, TRDP 2.17G ("no ruling upon a discovery dispute shall be a basis for reversal solely because it fails to strictly comply with the Texas Rules of Civil Procedure"). 16. TRDP 2.17N, 2.21-2.27. See also, TRDP, Part VII. 17. TRDP 3.02. 18. TRDP 3.01-3.16. 19. TRDP 3.16. 20. TEX. GOV'T. CODE §81.076; TRDP 1.06D, 2.14A, Part 4, and 5.01G. 21. TRDP 2.17M and 3.08C. 22. A confidential sanction published without the name of the respondent attorney. 23. A public sanction published together with the name of the respondent attorney. 24. A public sanction suspending the respondent attorney from the practice of law for a specific term; however, the suspension is "probated," which means that the respondent may practice law during the period of suspension subject to specific terms and conditions. 25. A public sanction suspending the respondent attorney from the practice of law for a specific term followed by a period of probated suspension. 26. A public sanction suspending the attorney from the practice of law for a specific term. 27. The most severe discipline resulting in a complete loss of a respondent attorney's license to practice law. 28. TRDP 1.06Y; see also TRDP 15.11. 29. TRDP 1.06Y. 30. For this article, all statistics are based upon the State Bar of Texas 2008-09 fiscal year which runs from June 1 to May 31. 31. TDRPC 1.01(b)(1) and (2). 32. TDRPC 1.01(c).