RECOMMENDATION NO. 1: Judicial Training and Selection
In a recent matter, former Chief Justice of the Texas Supreme Court, Wallace Jefferson, appointed his former law school classmate, Juvenile Court Judge Carmen Kelsey to hear a Disbarment matter. It is hard to fathom why Judge Kelsey was chosen other than she was a friend of Judge Jefferson.
In her 20+ year career as a juvenile court prosecutor and then as a juvenile court judge, she never appeared in a civil court nor tried a civil matter. She had no experience with the civil court system as an attorney or judge, before the one in question. She admitted several times in the proceeding that she had no civil court experience. She did not understand certain terms (“Explain to me what supersedeas means?”)
If the grievance system is to keep the election to civil district court an option, having judges who have no training or experience with the civil system is a travesty. If they are to be trained, it should be someone other than the OCDC who appears before them who does the training. Many of the 25 amicus briefs filed at www.ocdc-revealed.com opine how Judge Kesley simply did not know what she is doing.
The Supreme Court should address this lack of training and provide it by some entity or person other than the OCDC. Another improvement would be to limit the selection of judges for discipline matters to those judges who understand that contract disputes and fiduciary obligations are rarely, if ever, disciplinary matters. It is hoped that you will recommend to the Legislature that the Judicial Appointment System for Judges be changed so that only qualified and experienced Judges will be appointed to hear disbarment cases.
This training should be provided by someone other than the OCDC. It may be helpful to the Commission to hear from one very experienced and knowledgeable Texas attorney, and how he sees the judicial selection for the grievance process: “David M. Stagner; It would be interesting and instructive to see how many of the district court disciplinary case[s] are prosecuted without hearing from a single witness in the CDC’s case-in chief. In lawyer Bennett’s case, the judge refused to listen to obviously qualified experts because “she didn’t want anyone to tell her what to do” (I paraphrase, even though quoted) And, she walked out of the proceeding while Bennett’s counsel was perfecting the record by an offer of proof. This erstwhile judge (I understand she was defeated in the last election) is too stupid to think this is the proper way to administer justice to a member of the bar. Her attitude was learned, but from whom is the real question. There is no transparency of how the judges in disciplinary trials are selected. And, I am curious if the Committee for Lawyer Discipline or member of the Office of Chief Disciplinary Counsel “instructs” during judicial meetings.”
A second observation is made by another attorney David M. Stagner, “I couldn’t agree more. At bottom, the Disciplinary Counsel’s office has no real oversight. The worse judges I’ve experience in my 45 years of practice have been the several appointed to hear disciplinary cases in which I have been counsel. One wonders if these judges are appointed with implicit instructions toward a generally acceptable result. How are so many of these poor excuses for judicial officers consistently appointed? Power corrupts and absolute power corrupts absolutely.” Again, a recommendation to address this lack of transparency in how judges are selected should be addressed. A recommendation should be made to the Texas Legislature to change how judges are selected to hear grievance matters. If there are any doubts about the need for changes in this area, please read the editorial opinions from the San Antonio Express News (posted at www.ocdc-revealed.com) about how unqualified Judge Kelsey was to hear any matter – much less a complicated grievance process matter.
RECOMMENDATION NO. 2: Review of Grievance System and Procedure
It is not working. On the ocdc-revealed.com site, up to 20+ examples of prosecutorial misconduct are listed. The vast majority of Bar members see the grievance system as targeting only solo practitioners and small firms. Any attorneys with a sophisticated practice or a larger firm have little to worry about from the OCDC. This claim is supported by the fact that no attorneys were disbarred in the Enron mess or in the Stanford International Bank criminal case. Numerous attorneys were involved in both cases.
The only way that faith in the grievance system can be restored is for an outside entity or independent compliance program to evaluate the grievance process as the ABA recommended and this Committee considered and recommended in 2007. As one very knowledgeable attorney posted on the Sunset Facebook page: “David M. Stagner; The institution of the bar has become self-serving and self-perpetuating. An institution that has lost touch with its mandatory members. Discipline and admission don’t need a bar association. That’s the job of the Supreme Court. The bar has excellent CLE, but it should compete as a voluntary association in the private sector. Why else do we need the State Bar of Texas? Is the contribution so clear that everyone admitted to the bar must be a member? Hey, I thought Texas (to the delight of the conservatives) was a right to work state.”
Another attorney expressed it this way: “Nachael Foster: The SBOT applies discipline arbitrarily. When I went to the SBOT with a complaint that a lawyer had knowingly and willfully lied to a court by claiming that another court had already signed a child custody order, the SBOT stated that the behavior was not lack of candor towards the courts. Here, Robert S. Bennett is being disciplined for asking a higher court to review an arbitration involving a client. When the SBOT applies discipline in such obviously arbitrary ways, lawyers and the public lose faith.” It is hoped that you recommend that an independent body evaluate the Bar and the grievance system. This should be done before the Sunset Review is completed.
RECOMMENDATION NO. 3: Independent Counsel
I do not want to repeat what Ms. Hardwick stated in her June 16, 2015 letter, but all her suggestions should be given serious consideration. You should also read the Amicus Curiae brief she wrote at: www.ocdc-revealed.com. She also posted a letter on this same site about how confused Judge Kelsey was during the trial Judge Kelsey presided over.
The first recommendation of Ms. Hardwick regarding how independent Counsel is needed for the Commission for Lawyer Discipline is very important. It borders on the absurd that the Commission will have the Chief Disciplinary Counsel sit at all the meetings, but a grieved attorney cannot even appear. It certainly appears that the Commission is only interested in getting information from one source and this is not a balanced approach. This result in what Ms. Hardwick states is wrong and has “bizarre” outcomes.
The shift of the Burden of Proof also deserves your attention. The Amicus Brief of David Stagner at the OCDC site addresses this in detail. He has written: “I think the burden of proof issue is important for two reasons. First, the court can simply not address it concluding that even under a preponderance of the evidence standard that the judgment of disbarment was a clear abuse of discretion and either reverse and render or reverse and remand.
By definition, any burden of proof heavier than a preponderance of the evidence makes it more difficult to disbar a lawyer. Texas case law distinguishes between an action of reprimand against an attorney and the disbarment of an attorney. In Polk v the State Bar of Texas, 480 F.2d 998, 1001 (5th Cir., 1973) the Fifth Circuit states, “it must be plainly apparent that in Texas disbarment… Is treated as differing qualitatively from the lesser sanction of reprimand. . . “ Because a professional’s license often represents the fulfillment of extensive educational, training, and testing requirements, and because of the harsh and often stigmatizing consequences of a license revocation, some courts have concluded that the use of the clear and convincing standard of proof is constitutionally required. Of course, I said that authority in my brief. Interestingly, in a 1894 disbarment case of Scott versus state, the Texas Supreme Court stated (in dicta) that the evidence should sustain the charges on which the disbarment of attorney was sought “beyond a reasonable doubt, although it being not a criminal case.” Later decisions have held the standard for attorney disbarment in our disciplinary proceedings is preponderance of evidence. One is a 1933 Texas commission of appeals case, withholding approved by the Supreme Court, and the other an early 1990s Dallas Court of Appeals. Other Texas courts have written that the evidence against a licensed professional must “clearly sustain the charge” and must be “substantial,” and “reasonably free from doubt.”
The incorrect burden of proof issue needs to be considered. Our rules provide specifically for a preponderance of evidence standard, but it is ambiguous whether that standard applies to disbarment. Just last year in Gaia v Galbraith, 451 s.w.3d 398, the 14th COA acknowledged that disbarment proceedings are “quasi-criminal.” This should be recommended to the Texas Supreme Court.
RECOMMENDATION NO. 4: Maintaining Adequate Database
Regarding “Maintain and Share Sanctions Database” would greatly benefit all who are concerned with the grievance system. Ms. Hardwick provides some excellent reasons why this information would be useful and why the OCDC may not want Evidentiary Panels and Courts to have this information.
RECOMMENDATION NO. 5: “Make the Procedural Rules Apply Across the Board”
This addresses concerns with the OCDC and how it is really not evaluated, reviewed, or even policed by the CFLD. The OCDC gets reined in only when BODA issues an opinion. This certainly raises questions about how the CFLD operates and who decided what it will decide.
RECOMMENDATION NO. 6: “Rebut the Conclusion that the State Bar Targets Small Firms and Solos”
Lillian Hardwick’s statement about this area of perception and neglect needs no further comment. This Sixth Recommendation is one that every attorney in the State supports: “Permit More of a Win to a Respondent Attorney who “Wins” a Grievance.” The wins of Attorneys Peyman Momeni and Clarrisa Guajardo resulted in the expenditure of tens of thousands of dollars. Since the OCDC is not accountable to anyone and has never been sanctioned, there is no reason to act in a reasonable manner. Compensation should be paid.
RECOMMENDATION NO. 7: “Prevent Double-Dipping with Rule 8.04 (a) (1.)”
Again, I will let Ms. Hardwick speak for herself in her letter on this point.
RECOMMENDATION NO. 8: Prosecutorial Misconduct is Rampant
In supporting this article, a Texas attorney states, “What keeps going through my mind is that akin to officers of the court whose job and duty is to prosecute those citizens accused of a crime, the lawyers of the office of chief disciplinary counsel must always be guided with the fundamental and core value that is their job to see that justice is done, and not merely to cause a sanction. Once you stray from that core value, you have governmental lawyers behaving like Tim Bersch, his supervising lawyers, and now outside counsel. Coupled with the judge that has a reputation for rejecting plea agreements, she was going to, and up to now, has shown everyone that she’s running the show. Your insupportable and unjustifiable disbarment did not negate the bar’s obligation to see that justice was done. I submit that they had an ethical obligation to confess error, and then it the office of chief disciplinary counsel (and presumably their client-the committee on lawyer discipline) that is unnecessarily delaying and making more costly resolution of your lawsuit. And, to whom are they account?”
“I represented a lawyer who was acting pro se and filed a motion to continue his disciplinary trial. He was disbarred, and then we discovered (actually my excellent legal assistant) that the order overruling the continuance motion was signed before the judge ever saw the motion. The OCDC, by mistake, sent only the order and later filed the motion and sent it to the judge. This was reversed by the BODA, but very troubling.”
RECOMMENDATION NO. 9: Correct Bad Faith Mediation
This has been my personal experiences with the OCDC: “Many have asked what happened at the mediation and why the case was not settled. You have to understand that the 14th Court of Appeals entered an Abatement Order on July 10, 2014. This Order stated: “We have determined that this case is appropriate for referral to mediation, an alternative dispute resolution process.” The Court’s Rules on Mediation state as follows: “vi. Commitment to Participate in Good Faith. While no one is asked to commit to settle their case in advance of mediation, all parties commit to participate in the proceeding in good faith with the intention to settle, if at all possible.” For the Commission on Lawyer Discipline to think that an offer of a ten (10) year suspension with 9 years active suspension was fair and in good faith with an intention to settle was absurd. After the OCDC/CFLD presented their case at the March 2014 Disbarment trial, they wanted to settle for a one year probated sentence. Since I had done nothing wrong and not one witness (fact, expert, or former client) testified against me, I saw no reason to take the one year probated offer. I wish the San Antonio Express editorials about Judge Carmen Kelsey had been published a little earlier. There were other conditions that the CFLD wanted such as a letter of apology that came about after the mediation. So the bottom line was that the OCDC/CFLD never made an offer that was done in good faith with the intention to settle. This needs to be addressed by the Commission.”
RECOMMENDATION NO. 10: IMPORTANCE OF WEBSITE: WWW.OCDC-REVEALED.COM
At the website, www.ocdc-revealed.com, the Commission will find the transcript of the trial and letters from supporters, along with ten individuals who attended the trial and/or were witnesses at the trial. You will also find our Motion for New Trial and other related examples of the OCDC committing prosecutorial misconduct.
Other examples of the OCDC/CFLD engaging in bad faith mediation will be submitted. On the site, other examples of the OCDC engaging in prosecutorial abuse are given. Read what happened to Texas Attorneys Peyman Momeni and Daniel Patrick Smitherman and others.
RECOMMENDATION NO. 11: The Bar Associations are Failing
The author of this article disagrees with the Texas Bar President who said, “As your president, I believe it is important that we are able to go to the Supreme Court and the Legislature and show them that the State Bar of Texas is an open book. We encourage participation and comment from all sectors of our profession and the public. We welcome scrutiny.” The Bar membership does not believe this. The public does not believe this.
RECOMMENDATION NO. 12: Complaints to be Sworn
The Texas Ethics Commission requires this for elected officials. Why aren’t Texas Attorneys afforded the same protection as any Texas elected official? The State of Alaska requires a Sworn Complaint. This should be considered by the Commission.
I was the only candidate for the State Bar of Texas who attended the Hearing on HB 2102 yesterday in Austin. This bill concerns the continuation and functions of the State Bar of Texas. This legislation will take away as originally written our right to vote on dues and fee increases, along with disciplinary rules. Or as State Bar of Texas President Candidate Joe Longley testified: “Our voting power over dues and fee increases is our only restraint over the internal financial fraud and waste that has infected the State Bar. Abolishing our right to vote will only enhance the long time perception that the State is an exclusive club run by a hand-full of insider cronies.
Why Joe is running for President of the SBOT, and Cynthia Owens, and I are running for the Board of Directors is to:
1. Preserve your right to vote on dues and fee increases,
2. Preserve your right to vote on changes in disciplinary rules,
3. Bring more transparency to the Bar’s financial activities, and
4. Represent your voice at every State Bar Board meeting.
Taking away our power over the purse strings and legislating it to the State Bar is a bad idea. This is true especially in the light of the recent $500,000.00 theft of dues money by the then Bar’s Membership Director – and Deputy Clerk of Texas Supreme Court Kathleen Holder. This embezzlement of Bar dues took place (this is unbelievable!) over a nine-year period (2003-2012) and was only discovered when a mail clerk sent the cancelled checks to someone other than the Bar’s Membership Director Holder. Our voting power – the right to preserve democracy- over dues and fees increases along with having the final vote on disciplinary rules that the Bar and Bar insiders want to take away – is our only restraint over documented internal fraud that has infected the State Bar and destroyed member’s trust.
I am also concerned that the Bar has now decided to fingerprint all members, continues to pay huge salaries to numerous bar staff, will keep criminal and grievance histories on file and public forever, allow the Office of Chief Disciplinary Counsel to do random criminal investigations at will and whenever it wants, post entire grievance history with no reason to remove or ability to, and allow the Office of Chief Disciplinary Counsel to subpoena at any time, and with no accountability.
Look up this legislation for yourself: Texas Legislature online – 85(R) Actions for HB 2102 legis.texas.gov. Look at our program to improve the Bar: www.bennettlawfirm.com and www.ocdc-revealed.com and plan on voting for Joe Longley for President, and Cynthia Owens, and Bob Bennett for Board of Directors – SBOT. Voting starts April 3rd and continues to MAY 2ND.
BOB BENNETT, CANDIDATE FOR STATE BAR OF TEXAS DIRECTOR.