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                                                                                                                 February 2008

                           LAWYERING FOR A LAWYER WITH A “DISABILITY”                                                             The Bennett Law Firm 
                                                                                                                                 515 Louisiana, Suite 200 
                                                           By: José R. Guerrero, Jr., Esq.
                                                              Bob Bennett, The Bennett Law Firm
                                                                                                                                  Houston, Texas 77002 

                                                                                                                                     In This Issue!

                                                                                                                                 ♦   Lawyering for a Lawyer
                    s a result of a 1987-88 review of the disciplinary procedures in other states, the Texas Grievance               with a “Disability”
                    Oversight Committee concluded that the Texas disciplinary rules for attorneys lacked a system to                 Before the State Bar of
 deal with lawyers impaired by mental illness or substance abuse. The previous rules did not make special provisions                 Texas
 for the disabled lawyer, other than lawyers who had been adjudicated incompetent by the court system. In 1990, the
 Texas Supreme Court approved a revised Texas Rules of Disciplinary Procedure (TRDP) which includes a comprehen-                 ♦   Texas Legal Ethics Ex-
 sive system for protecting the public from lawyers who have become incompetent due to mental illness or substance                   pert: Gonzales Likely
                                                                                                                                     Under Investigation by
 abuse through the mechanism of a new sanction: indefinite disability suspension. This sanction operates to prevent a                the State Bar
 disabled lawyer from causing irreparable harm to the public, the courts, and the profession. Furthermore, disability sus-
 pension assures that the disabled lawyer will receive treatment for his condition before returning, if at all, to the prac-     ♦   Night Court, A Houston
 tice of law. This article focuses on the Texas Disciplinary procedural considerations of triggering a referral to the               Bar Association Produc-
 “disability docket” and successfully navigating the Texas disability rules when a lawyer faces a grievance complaint                tion
 resulting from mental illness or substance abuse.
                 THE GENERAL TEXAS ATTORNEY GRIEVANCE PROCESS FRAMEWORK                                                           Robert S. ("Bob") Bennett
                                                                                                                                  Renée E. Moeller-Taylor
          When a grievance is filed against a Texas attorney, it is carefully reviewed by the State Bar of Texas’ Office of            OF COUNSEL
 Chief Disciplinary Counsel (OCDC) and, within thirty days, a determination must be made as to whether it contains                     Steve Peterson
 allegations of professional misconduct or not. When a grievance fails to allege misconduct, it is classified as an                    Skip Cornelius
 “Inquiry” and is dismissedi. A grievance that successfully alleges professional misconduct is classified as a                          Sherri R. Katz
                                                                                                                                     Joe Guerrero, Jr., Esq.
 “Complaint,” causing the respondent-attorney to be given written notice requiring a response. If there is a finding of
 just cause as to misconduct, the respondent-attorney will be given notice of any potential violation of the professional                    Staff
 rulesii.                                                                                                                              Brenda Troutman,
                                                                                                                                        Office Manager

          Upon receipt of such notice, the respondent-attorney must inform the Texas Office of Chief Disciplinary Coun-           Sana Siddiqi, Legal Assistant
 seliii whether he elects to have the Complaint heard in a district court of proper venue, with or without a jury, or by an
                                                                                                                                  Scott Chauveaux, Marketing/
 Evidentiary Panel of the Office of Chief Disciplinary Counsel. The election must be in writing and served upon the                      Legal Associate
 Texas Office of Chief Disciplinary Counsel no later than twenty days after receipt of notice. Failure to timely file an
 election will render the respondent-attorney subject to the Evidentiary Panel, by default.                                             Sandy Martinez,
                                                                                                                                       Legal Receptionist

         In the instance where a respondent-attorney elects to have the Complaint heard in district court, the Texas Of-             Ashley Tse, Law Clerk
 fice of Chief Disciplinary Counsel must, within sixty days of receipt of this election, file a “Disciplinary Petition” with     Outside Medical Counsel
 the Clerk of the Supreme Court of Texas in the name of the Commission for Lawyer Discipline (CFLD)iv, a permanent                     Sheryl Dacso
 committee of the State Bar of Texas. Caution: if the respondent-attorney suffers from mental illness or substance
 abuse, an election to proceed in district court will preclude him from being placed on the “disability docket,” as the dis-
 trict court lacks authority to refer the matter. Thus, a respondent-attorney must, at this stage of the proceeding, elect to
 have his Complaint heard by an Evidentiary Panel of the Texas Office of Chief Disciplinary Counsel if he intends to
 have the matter referred to a special “disability” committee.

          Within fifteen days of the earlier of either the date of Texas Office of Chief Disciplinary Counsel’s receipt of
 respondent-attorney’s election or the day following the expiration of respondent-attorney’s right to elect an Evidentiary
 Panel, the chair of a grievance committee having proper venue shall appoint an Evidentiary Panel to hear the Com-
 plaint.v The Texas Office of Chief Disciplinary Counsel must then file with the Evidentiary Panel an “Evidentiary Peti-
 tion” in the name of CFLD which is served upon the respondent-attorney. The respondent-attorney is given no later
 than 5:00 p.m. on the first Monday following the expiration of twenty days after service of the Evidentiary Petition to
 file a In his response, it is crucial that the respondent-attorney make allegations concerning his “disability”
 in order to trigger a referral to the “disability docket.”

         The Texas Office of Chief Disciplinary Counsel or the Evidentiary Panel determines whether it is evident from
 the Complaint (or the response) that the respondent-attorney suffers from a “disability” to such an extent that either his
 continued practice of law poses a substantial threat of irreparable harm to a client or prospective clients; or he is so im-
 paired as to be unable to meaningfully participate in the preparation of a defense.vii If the Texas Office of Chief Disci-
 plinary Counsel reasonably believes that the respondent-attorney suffers from a “disability,” it must seek authority
 from CFLD, to refer the Complaint to the Board of Disciplinary Appeals (BODA).viii After obtaining authority from
 CFLD, the Texas Office of Chief Disciplinary Counsel then forwards the Complaint and any other relevant documenta-
                                                                                                                                 Visit us on the web for
 tion to BODA. An Evidentiary Panel may also refer the matter to BODA if it finds that the respondent-attorney suffers
                                                                                                                                  articles, information
 from a “disability,” based on allegations made in his response to the grievance. In either case, a referral to BODA’s
                                                                                                                                      and updates!
 “disability docket” suspends the grievance process until BODA issues a final judgment on the matter. Prior to January
 1, 2004, only the Investigatory Panel (no longer in existence) could make a “disability” referral, but now a referral may
                                                                                                                                      Legal Website
 arise either during Texas Office of Chief Disciplinary Counsel’s initial investigation of a Complaint or during the evi-
 dentiary hearing stage where the matter is not being heard by a district court.
                                                                                                                                     Medical Website

                            DISABILITY COMMITTEE (DDC)

        Appointed by the Supreme Court of Texas, BODA has served since 1992 as an independent statewide judicial
 body with appellate jurisdiction over certain types of attorney discipline cases and exclusive original jurisdiction in dis-
         Appointed by the Supreme Court of Texas, BODA has served since 1992 as an independent statewide judicial
body with appellate jurisdiction over certain types of attorney discipline cases and exclusive original jurisdiction in dis-    “Bad Prosecutors”
ability suspensions. BODA has the power to indefinitely suspend an attorney who suffers from a “disability,” defined           and “Defend the Doc”
by TRDP as “any physical, mental, or emotional condition that, with or without a substantive rule violation, results in          Blogs Await Your
the attorney’s inability to practice law, provide client services, complete contracts of employment, or otherwise carry             Comments!
out his or her professional responsibilities to clients, courts, the profession, or the public.” Generally, this definition
encompasses a wide range of medical conditions including severe depression, alcoholism, drug abuse, and other more               Bad Prosecutors
traditional physical and mental manifestations of disease.
                                                                                                                                 Defend The Doc
        Following receipt of a “disability” referral, BODA appoints a District Disability Committee (DDC). The DDC
is an ad hoc committee composed of one attorney, one doctor of medicine or mental health care provider holding a
doctorate degree in the area of disability, and one public member who does not have any interest in the practice of the
law other than as a consumer.ix After appointing the DDC, BODA notifies the respondent-attorney that a committee
has been appointed and sends him a copy of any procedural rules that apply. If the respondent-attorney is not contest-
ing the “disability” issue, at any time after notification from BODA, he can waive the disability hearing and enter into
an agreed disability suspension with BODA, so long as he is competent to do so. This can be accomplished by submit-
ting a sworn affidavit stating that he understands the consequences of his actions, is competent to waive the hearing,          Come visit my
and is competent to agree to indefinite disability suspension.                                                                   new AVVO
         BODA deputy director serves as the clerk for the DDC proceedings; she manages all filing deadlines, sets hear-            page!
ings, and handles all motions and requests for appointment of counsel. Within 20 days of BODA appointing the DDC,               CLICK HERE
the Texas Office of Chief Disciplinary Counsel must file with the DDC, a proposed hearing order containing a list of
names and addresses of all witnesses expected to be called to testify and all exhibits expected to be offered.x The re-
spondent-attorney, in turn, has 20 days from receipt of Texas Office of Chief Disciplinary Counsel’s hearing order to
file his own proposed order with BODA.xi The final hearing order may contain a provision directing the respondent-
attorney to undergo a physical and/or psychiatric examination. Failure of the respondent-attorney to comply with an
order to submit to examination will cause the finding of the local grievance committee to be final.


       The DDC holds a de novo evidentiary hearing governed by Part VIII of BODA Internal Procedural Rules where
the committee takes evidence on the disability issue to determine whether a “disability” exists.xii Where the referral is
made by an evidentiary panel, the party asserting “disability” carries the burden of proof. After the respondent-attorney        H Magazine
has been given reasonable notice of the hearing, he is afforded an opportunity to appear before and present evidence to
the DDC, including evidence from his own medical expert regarding his particular disability. Upon timely request,
                                                                                                                               February Issue!
BODA may appoint an attorney to represent the respondent-attorney’s interest during this closed disability hearing.             2008 Houston’s
        If the DDC finds that the respondent-attorney is not suffering from a “disability” at the present time, the entire
                                                                                                                                Top Lawyers for
record and findings are returned to the Texas Office of Chief Disciplinary Counsel and the matter continues in the dis-           the People
ciplinary process from the point where it was referred to BODA. Conversely, if there is a finding of “disability,” the
DDC will certify such finding to BODA, who shall immediately enter an order suspending the attorney indefinitely. If,
however, the attorney demonstrates that there is no likelihood of harm in his or her continued practice of law, the DDC
may recommend a probated disability suspension conditioned on the attorney complying with certain terms and re-
quirements. The DDC may also develop a monitoring plan for the attorney as a condition of the probation and require
periodic reports to the Texas Office of Chief Disciplinary Counsel, who will supervise the probation.xiii At any time
during the probationary period, the Texas Office of Chief Disciplinary Counsel may request modification of the condi-
tions or move to revoke the probation altogether. After indefinite suspension has been ordered, the CFLD will notify
each jurisdiction where the respondent-attorney is admitted to practice law of the suspension and/or subsequent rein-

         According to the TRDP, a “disability” determination by BODA shall be reviewed under the “substantial evi-
dence rule.” Under this rule, the findings and conclusions of an administrative body are presumed to be supported by
substantial evidence, and the party challenging the findings and conclusions must bear the burden of proving other-
wise.xiv In determining whether there is substantial evidence to support the findings and conclusions of the administra-
tive body, the reviewing court may not substitute its judgment for that of the administrative body, but must consider
only the record upon which the decision is based.xv The administrative body's action is sustained if the evidence shows
that reasonable minds could have reached the conclusion that the administrative body must have reached in order to
justify its action.xvi And although there must be more than a “mere scintilla” of evidence to support the administrative
body's decision, it may be true that the evidence actually preponderates against the decision, but still amounts to
enough evidence to pass the substantial evidence test.xvii The record of all disability proceedings must be under seal and     To see a list of
must remain confidential, except as to the respondent-attorney; only the final judgment and order of indefinite suspen-
sion is to be made public. Any statute of limitations applying to the disciplinary matter will be tolled during the period
                                                                                                                               all our articles
of any disability suspension.                                                                                                  please visit our
        Disability suspension differs from disbarment or resignation, in that, the latter requires that the disbarred attor-
ney re-take the Texas bar exam, but only after five years have elapsed since the matter giving rise to disbarment is re-
solved. Conversely, a suspended attorney may file for reinstatement at any time after the imposition of an indefinite
disability suspension by filing a verified petition with BODA or with a state district court of proper venue (BODA
shares concurrent jurisdiction with the state district court).xviii The petition must have attached; a certified copy of any
court order relating to the attorney’s competence, an affidavit from a mental health care provider as to the attorney’s
current condition, and, if the suspension was related to alcohol or drug abuse, a report from a physician on the attor-        The Bennett Law Firm
ney’s current condition.xix Such attachment is not considered evidence, per se, but is a requirement of the pleading. The           Publications
suspended attorney must prove by a preponderance of the evidence that the reasons for the suspension no longer exist
and that terminating the suspension will not endanger the public or the profession. If the attorney meets the burden of
proof, BODA or the district court, as the case may be, shall order a termination of the suspension.xx
        BODA holds an evidentiary hearing en banc to determine whether the attorney meets the requirements for ter-
minating the suspension and may require that he undergo an examination by an appropriate health care provider.xxi The
adjudicatory body can grant or deny the reinstatement, or place the lawyer on a probated disability suspension for a
fixed term. If the reinstatement petition is denied, within 14 days after the attorney receives notice of the denial, he
may appeal the decision to the Texas Supreme Court. If an attorney is reinstated to the practice of law, all pending
grievance matters which were not disposed of may be re-considered by the Texas Office of Chief Disciplinary Counsel
to determine what action should be taken, if any. Furthermore, if the reinstated attorney was suspended for two or more
consecutive years, he may be ordered to re-take and pass the professional responsibility portion of the bar exam, and/or
take courses at a law school or through continuing legal education courses.

iii. TEX. R. DISCIPLINARY P. 2.15.
vi. TEX. R. DISCIPLINARY P. 2.17 (B).
vii. TEX. R. DISCIPLINARY P. 2.14 (C).
viii. TEX. R. DISCIPLINARY P. 2.14 (B).
ix. TEX. R. DISCIPLINARY P. 12.02, 12.03.
xii. TEX. R. DISCIPLINARY P. 12.03.
xiii. TEX. R. DISCIPLINARY P. 12.06 (H).
xiv. El Paso v. Pub. Util. Comm'n of Tex., 883 S.W.2d 179, 185 (Tex. 1994).
xv. R. R. Comm'n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995); Tex. State Bd. of Dental Exam'rs v. Sizemore, 759
      S.W.2d 114, 116 (Tex. 1988).
xvi. Tex. Health Facilities Comm'n v. Charter Med. - Dallas, 665 S.W.2d 446, 452 (Tex. 1984).
xvii.El Paso, 883 S.W.2d at 185.
xviii.TEX. R. DISCIPLINARY P. 12.06 (A), (D).
xix. TEX. R. DISCIPLINARY P. 12.06 (B).
xx. TEX. R. DISCIPLINARY P. 12.06 (E).
xxi. TEX. R. DISCIPLINARY P. 12.06 (C).

                                            The Texas Board of Law Examiners:
                                            What the Law Student Should Know
                                   by Renée E. Moeller-Taylor and Bob Bennett, The Bennett Law Firm

        Any law student wishing to apply for admission to the Texas Bar must complete and filed a form entitled the
Declaration of Intention to Study Law (“Declaration”) with the Texas Board of Law Examiners (“BLE”)1. The dead-
lines vary according to when you start law school; however the deadline tends to fall shortly (possibly as quickly as
within 6 weeks) of when you begin your law school studies. Check with the Texas Board of Law Examiners for exact

A.      When the Process starts for the Texas Board of Law Examiners
        It all actually starts before you are accepted to law school. The Texas Board of Law Examiners’ staff will com-
pare the responses given on your law school application to the responses given on your Declaration. Questions relating
to criminal offenses and discipline received as a student will receive particular review.2
        You should note that the questions are not necessarily identical on law school applications as they are asked on
the Declaration.3 Unfortunately, your law school application may probably have been completed a year or more before
you are looking to complete the Declaration, but careful attention must be given to the responses you make on your law
school application. Both the law schools and the Texas Board of Law Examiners expect your answer to be truthful and
complete. When in doubt, disclose.4

B.      Texas Bar of Law Examiners Investigation
        If you misguidedly think the investigation is not all that extensive, you’re wrong. The Texas Board of Law Ex-
aminers will obtain criminal history information from both the FBI and the Texas Department of Safety. Other records
will be checked as well with authorization and release forms submitted with your Declaration.
        What happens if your application to law school was not as complete as needed or too informal; not as complete
as the Declaration requires?! Go immediately to your Dean of Admissions, explain and get an amendment to you law
school application made. This amendment will also have to be disclosed on your Declaration and documented.
        When in doubt, disclose. Make sure you do so timely. This is extremely important especially if there are sig-
nificant matters to be revealed. Resolution and counseling in the resolution of many issues are possible during the time
students are in law school, but timely filing gives one the benefit of the greatest period of time. You may be embar-
rassed about past events, major or minor, but the first issue is your honesty, as part of your moral character.

C.     Texas Bar of Law Examiners: Background & Issues
       The Rules of Admission requirement that a person be of present good moral character and fitness; hence the
Board of Law Examiners’ investigation. Issues which may require a hearing include, but are not limited to:
Dishonesty, including non-disclosure of information requested by a law school or the Board of Law Examiners;

Felony criminal history (see Rule IV on the Board of Law Examiners’ website for additional information about felo-

Significant misdemeanor criminal history;
Failure to discharge significant financial obligations, including:
•       Payment of child-support;
•       Filing federal income tax returns and payment of required taxes;
•       Failure, in an employment setting, to file withholding taxes for employees; and
•       Default in a substantial amount of business or personal debts.5

         On the issue of disclosure of expunged or seal offenses, “[w]hile expunged or sealed offenses, arrests, tickets,
or citations need not be disclosed, it is the applicant's/declarant's responsibility to ensure the offense, arrest, ticket, or
citation has, in fact, been expunged or sealed. Failure to reveal an offense, arrest, ticket, or citation that is not in fact
citation has, in fact, been expunged or sealed. Failure to reveal an offense, arrest, ticket, or citation that is not in fact
expunged or sealed, raises questions related to truthfulness in addition to questions regarding the offense itself.6

D.       Texas Bar of Law Examiners’ Non-Disclosure Rule.
         Sometimes the issue of whether or not offenses that are the subject to orders of non-disclosure need to be re-
vealed comes up. While you are not required to reveal such matters on the Declaration/Application form,7 a criminal
matter that is the subject of an order of non-disclosure may become a character and fitness issue. Pursuant to other sec-
tions of the Government Code,8 the Texas Board of Law Examiners is entitled to access criminal history record infor-
mation that is the subject of an order of non-disclosure. “So, if the Board of Law Examiners discovers a criminal matter
that is the subject of an order of non-disclosure, even if you properly did not reveal that matter, the Board of Law Ex-
aminers may ask you to provide information about that criminal matter.”9

E.     Moral Character or Fitness for the Texas Board of Law Examiners
       Frequently asked is what is the difference between “good moral character” and “fitness”? While the definitions
found in Rule I offer no information, by inference from Rule X (b) the Board of Law Examiners is looking for chemi-
cal dependency or misuse,10 which includes all forms of drugs, legal or illegal, and alcohol. In this context, common
sense dictates that any indication of psychological or mental disorder would come under the issue of “fitness” as well.
Any chemical dependency or misuse could additionally come under the issue of “good moral character” also.
       If you require a hearing before the Board of Law Examiners, some notes for preparation:
• Investigate the attorney panel before which you are to appear;
•    Have a separate set of all exhibits, both the Board’s and yours , for the hearing;
•    Prepare a chronology of all events, criminal history and actions;
•    When applicable, remember that the actual criminal history is not the issue; and
•    Excuses are of no value if you intended to conceal.

         At a hearing before the Board of Law Examiners, here are some questions you should be prepared for:
     •   Have you informed your present employer about this hearing?
     •   Have all documents been premarked and provided to the Board of Law Examiners’ attorney?
     •   What is the reason you failed to fully disclose as requested in the law school application?
     •   Did you consider your disclosure full and complete as it says above your signature?
     •   When you amended why was it not full and complete?
     •   Are you telling the whole truth today?
     •   Is it not correct when you said that you did not intend to deceive the law school?
     •   Is it not correct when you said that you did not intend to deceive the Board of Law Examiners?
     •   What action did the law school take when you told them?
     •   If you thought something was not disclosed, why did you not inform the school that you were still looking?
     •   What were you trying to conceal on your application?
     •   Do you understand the higher standard that an attorney has to adhere to?
     •   Were you trying to deceive yourself in this matter?

F.      Texas Board of Law Examiners: Statistical Information
     According to statistical data available from the Board of Law Examiners, in 2007 there were 116 cases that went to
full hearing and one case in which Agreed Orders were considered and concluded. Similar data for 2006 indicates 112
cases went to full hearings and there were 5 cases in which Agreed Orders were considered and entered. In 2007, the
central issues for hearings and agreed orders were:
         • Dishonesty (56);
         • Criminal History (18);
         • Chemical Dependency (9);
         • Non-compliance with conditions of Board Order for a Probationary License (8);
         • Non-compliance with curative measures in prior denial order (Petition for Redetermination) (5);
         • IRS issues (4);
         • Debt issues (4);
         • Attorney applicant with disciplinary history (3);
         • Lack of trustworthiness in carrying out responsibilities (2);
         • Child Support Issues (2);
         • Conduct Issues (2);
         • Cheating, Bar Exam (1);
         • Non-compliance with conditional approval of Declaration (1);
         • Unauthorized practice of law (1); and
         • Employment issues (1).

        The Board of Law Examiners notes that “none of the following issues were determined to be central issues in
hearings or agreed orders during [2006]: failure to support the Constitution; professional discipline in another profes-
sion; civil litigation; mental health; non-compliance with conditional approval of Declaration; denial in another
        The results of the full hearings held in 2007 (116 hearings total) fall into 3 categories:
             • Favorable to the person: character and fitness approved 71 (61%)
                 (% favorable in FY 06 was 54%).

            Unfavorable to the person:
                  ◊ Denied …………………………………………7
            Unfavorable to the person:
                  ◊ Denied …………………………………………7
                  ◊ Revoked PL, prior to licensure………………...0
                  ◊ Exam score voided……………………………..0
                  ◊ Recommended revocation of an active PL……..2
                  ◊ Recommended cancellation of regular license…0
                  ◊ Total unfavorable to person…………………….9 (7%)
                              (% in FY 06 was 17%).

            Probationary Licensure or Conditional Approval of Declaration:
                   ◊ Recommended for initial probationary license……...27
                   ◊ Probationary license amended or continued………….7
                   ◊ Conditional approval of a Declaration………………..2
                   ◊ Total………………………………………………….36 (31%)
                              (% in FY 06 was 29%)

        “Dishonesty continued to be the number one issue.”13

       In summation, when in doubt, disclose. If there is any hint in your mind that you might not have all the infor-
mation disclosed, inform the law school and the Board of Law Examiners that you are still looking; and keep at it.

G.     The Texas Board of Law Examiners & The Bennett Law Firm
       The Bennett Law Firm has over ten years experience in handling cases before the Board of Law Examiners.
Every client we have represented as been admitted. All but one were admitted or approved immediately, and that one
received a probationary license and ultimately received an unconditional license. We have the experience to assist the
applicant/declarant through this often emotional and stressful situation, and assist with the analysis of your particular
scenario and what are the best actions to be taken in each particular case. At hearing time, those applicants/declarants
who are represented by counsel are taken first. While that is a very minor point in favor of having the assistance of
counsel, remember the old adage, “The attorney who represents him/herself, has a fool for a client.” One does not
want to begin or end one’s legal career on the wrong foot and appearing without counsel may increase the risk of a less
than favorable outcome.
 1                                                                      7
 The Texas Board of Law Examiners is not a part of the Texas State      Texas Govt. Code §552.142 (b).
 Bar. Both are established per the authority of the Texas Supreme
 Court but are separate entities.; FAQs                 Texas Govt. Code §§ 411.081(d), 411.081(i)(5), 411.083(b),
                                                                        411.084(a), 411.087(a), and 411.100.
  “A Message from the Texas Board of Law Examiners to Prospec-
 tive Applicants for Admission to the Bar of Texas,” Prospective Stu-   Texas Bar of Law Examiners website:; FAQs.
 dent Message.
                                                                            Rules Governing Admission to the Bar of Texas.
                                                                            BOARD OF LAW EXAMINERS CFSTATS.FY07.
  Texas Bar of Law Examiners website:; FAQs

                                     Texas Legal Ethics Expert:
                                  Gonzales Likely Under Investigation By State Bar                                                     The Bennett
                                                                                                                                         Law Firm
                              By: Michael Roston                                                                                       Quoted in the
                              The Huffington Post                                                                                     Huffington Post!
                              September 18, 2007 07:18 AM

Alberto Gonzales, Former AG

The woman who literally wrote the book on legal ethics in Texas says it's likely that the Texas State Bar is probing the
professional conduct of former Attorney General Alberto Gonzales.

"Given the publicity regarding the allegations concerning Mr. Gonzales, I would be surprised if the [Office of the Chief
Disciplinary Counsel of the Texas State Bar] is not currently investigating a complaint," said Lillian Hardwick, co-
author of the Handbook of Texas Lawyer and Judicial Ethics.

But the Disciplinary Counsel in Austin, which could mete out punishments up to disbarment, was unable to confirm or
deny whether Gonzales was facing scrutiny from his home state's bar association.

"I'm not able to answer that question," Maureen Ray, the Special Administrative Counsel in the Texas State Bar's Of-
fice of the Chief Disciplinary Counsel, told the Huffington Post on Monday. "Our rules provide that while grievances
are in an investigatory phase, up until anything is filed in district court or a public disciplinary sanction is issued, it's
Alberto Gonzales's tenure as President Bush's second attorney general officially ended Monday morning. Neither the
White House nor the Justice Department disclosed his future plans.

With the nomination of retired judge Michael Mukasey, Bush seemed ready to move quickly away from the nine
months of turbulence that Gonzales experienced. But congressional investigators have emphasized that Gonzales's exit
will not end the scrutiny of tenure at the Justice Department.

"I look forward to the Inspector General's findings on the unprecedented firings of nine United States Attorneys, the
improper political hiring of career officials within the Justice Department, the misuse of National Security Letters, and
the efforts to bypass the Department's finding that a warrantless surveillance program was without legal basis," Sen
Judiciary Chairman Patrick Leahy (D-VT) said three days after Gonzales announced his resignation. "The current At-
torney General is leaving, but these questions remain."

While Gonzales's resignation from public life ends the prospect of further impeachment or 'no confidence' motions in
Congress, the long-time Bush friend could still face professional sanctions in Texas.

"Is there enough evidence based on the US Attorneys investigation, perjury allegations on wiretapping, and obstruction
of justice charges, to initiate an investigation?" asked Bob Bennett, a Houston-based attorney who recently ranked
Gonzales as the 'worst prosecutor' in the nation at his blog 'Bad Prosecutors.' "There's no question. Would a reasonable
person think that rules of professional conduct have been violated? That's the standard to initiate an investigation."

The Chief Disciplinary Counsel receives about 7,000 complaints a year, office spokesperson Ray explained, and de-
clines to pursue around 2/3 of them. Under Texas State Bar rules, it also may initiate its own investigations when the
office believes such a move is warranted. Once a complaint is accepted by the Counsel, the party in question has 30
days to issue a written response. After the response is received, the Counsel determines whether there is just cause to
proceed, and allows the target of the investigation to choose whether the case will be heard in a district court, or by a
local grievance committee. The proceedings become public immediately upon entering a district court, or once a public
sanction is given. Sanctions include public and private reprimands, suspensions, and potentially disbarment.

Hardwick, who was recently awarded a Certificate of Merit by the Texas State Bar for her work revising the Texas
Disciplinary Rules of Professional Conduct, pointed out that according to the State Bar's rules, Gonzales's senior gov-
ernment position meant that he assumed "legal responsibilities going beyond those of other citizens. A lawyer's abuse
of public office can suggest an inability to fulfill the professional role of attorney."

She also said that if a complaint came before the Texas Bar, the Chief Disciplinary Counsel's office was likely to do its
work in a professional manner.

"Our current Chief Disciplinary Counsel is John Neal, who spent 10 years with the Texas Attorney General as Division
Chief, and is certified in Criminal Law by the Texas Board of Legal Specialization," she said in an e-mail. "I think he's
especially qualified to scrutinize charges, factual findings, and disciplinary orders from another jurisdiction regarding
the kinds of allegations made against Mr. Gonzales."

But Gonzales critic Bennett said he was skeptical that the process would get so far due to the political sensitivities.

"In this type of political situation, it's very doubtful they would initiate an investigation," Bennett said of the Chief Dis-
ciplinary Counsel's office. He also suggested that he did "not see movement afoot among Texas Democratic groups" to
"further beat up on Al."

Still, Bennett acknowledged that the Texas State Bar's hand could be forced. The Justice Department's Office of Pro-
fessional Responsibility and Inspector General are jointly investigating a number of matters relating to the attorney
general's conduct, including allegations that he obstructed justice when he asked former aide Monica Goodling to share
her recollections about the firing of the US Attorneys, as well as charges that he perjured himself during congressional
testimony about the warrantless wiretapping program. Findings in those investigations could lead to moves in Texas
against Gonzales.

"If it comes out that he suborned perjury or obstructed justice, something like that will change the landscape," Bennett

Night Court, A Houston Bar Association Production

•   Last year the Night Court production “Draculaw” was a grand success and raised
    much needed money for charities in Houston. This year the theme will be
    pirates, “law of the sea”, and I’m sure it will be even better than the previous
    ones, so stay tuned for more information on this exciting charitable event.
    Click Here to view the latest promotion for this great charity event!
                                                                                       Links to previous Night Court produc-
                                                                                       tion articles:

                                                                                       1. The Houston Lawyer

                                                                                       2. Chron Blog

                Upcoming Events
                Robert Bennett to take a trip to Turkey with Interfaith Ministries

                •    Robert Bennett will be taking a trip to Turkey at the end of April that is part of an
                     Interfaith Ministries project.
                •    To learn more about them please visit there website at or at
                     their blog at

                                                                                   The Bennett Law Firm, P.C.
                                                                                         515 Louisiana, Suite 200
                                                                                          Houston, Texas 77002
                                                                                          Phone: (713) 225-6000
                                                                                           Fax: (713) 225-6001
   A former federal prosecutor, Robert S. “Bob” Bennett is Board Certified in Consumer and Commercial Law and is a founding partner of The Bennett Law Firm, P.C. in Houston, Texas. The Bennett Law
Firm, P.C. not only specializes in the representation of attorneys and judges in grievance matters, but also the representation of health care professionals in matters before the Texas State Medical Board. Mr.
    Bennett has authored numerous articles relating to grievance, professional conduct, and health law issues. For copies of articles and additional information see

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