All lawyers are treated equally, but some lawyers are more equal than others

The Tenth Court of Appeals in Waco will now decide whether College Station attorney Gaines West gets booted from a Brazos County lawsuit, and that decision could create a conundrum for the State Bar of Texas. An average lawyer could get in serious trouble for doing what Mr. West is accused of doing, but Mr. West is no average lawyer: he previously served as chairman of both the Texas Supreme Court’s Grievance Oversight Committee and its Board of Disciplinary Appeals.

Gaines WestYesterday evening, the Court of Appeals asked Mr. West to respond to a petition for mandamus seeking his disqualification from Clayton Williams Energy, Inc. v. Williamson (full disclosure: I’m one of the attorneys representing Mr. West’s former clients).  As explained in the petition, Mr. West switched sides in the trial court, representing a new party against former clients whom he had already represented in that same case. That’s a big no-no according to the professional rules governing lawyers, never mind the rules of common sense, and it is particularly ironic since Mr. West advertises himself as an expert on attorney disciplinary matters.

On December 30, 2014, another attorney sent a letter to Mr. West demanding that he stop representing the new party against his former clients. In a January 6, 2015 response, Mr. West refused to withdraw from the case. That was not particularly surprising, as Mr. West is not known for his humility. But I suspect there is another underlying reason for his stubbornness: he knows that where the state bar is concerned, lawyers with political connections (i.e., like him) typically do not have to play by the same rules as other lawyers. In other words, Mr. West may have thought that he would be immune from professional misconduct charges because of his political connections.

That would not be an unreasonable assumption on his part.  As I explained in the latter half of my March 9, 2015 post,  the state bar has long employed a double standard for lawyers with political connections.  The most recent example is Texas Attorney General Ken Paxton, who admitted in writing that he violated state securities law (potentially a third-degree felony), yet the state bar refused even to investigate. It now seems likely that Mr. Paxton will be indicted for criminal charges that the state bar deemed unworthy of an investigation.

Just yesterday, Texas Lawyer ran another article about an attorney speaking out against the state bar’s practice of arbitrarily dismissing legitimate complaints.  Arlington lawyer Mayur Amin described the state bar’s attitude as “lets see how many of these grievances we can get off of our desks as quickly as possible,” and he is absolutely right.  On December 17, 2014, for example, I filed an online grievance against Bryan F. “Rusty” Russ, Jr. (who spent 16 years as a member of a grievance committee) because he filed claims in court without the permission of his client and against the wishes of his client. In Texas, that’s not just professional misconduct, it’s a third-degree felony.

Assistant Disciplinary Counsel K.W. Morgan sent me a form letter the same day stating that my grievance was rejected because it was related to a prior grievance that had already been dismissed.  Obviously, K.W. Morgan had not read the grievance, because it had nothing to do with a prior grievance. I pointed this out to a more senior attorney at the state bar, and he admitted in writing that K.W. Morgan had wrongly classified my grievance because, in fact, it had nothing to do with a prior grievance.  Yet the state bar would not reinstate the grievance, and I had no right of appeal because of the way the grievance was classified, even though the state bar admitted that it should not have been classified that way.  Meanwhile, a corrupt (but politically-connected) lawyer may have perpetrated a crime against his own client, but the state bar was fully content to keep its head in the sand.

I could list other examples, but I think you get the picture.  State bar officers periodically hold strategy sessions to improve the image of the legal profession, and on at least one occasion the Texas bar directors authorized a six-figure public relations campaign, but they never seem to understand the real problem. To wit, the legal profession has a terrible reputation for one reason, and one reason only: we’ve earned it.  If the bar directors really wanted to improve the legal profession’s whorehouse reputation, they could start by purging the whores from the whorehouse.

I had some hope that the Texas Legislature would take up state bar reform in its last session, but as explained below, Lt. Governor Dan Patrick sank that ship. As a practical matter, nothing will change until the public demands an overhaul of our attorney disciplinary system, and that means the press needs to pick up the story.  The state bar started charging prosecutors with misconduct, for example, after the press reported that innocent people had been sent to prison and, in one case, death row (see Ken Anderson, Charles Sebest, and John Healey).  Angela Morris at Texas Lawyer has done a thorough job of covering the failures of the Texas disciplinary system, but she has a very significant limitation: Texas Lawyer is read primarily by Texas lawyers.

Will the state bar file a disciplinary case against Gaines West?

If the Court of Appeals decides that Mr. West violated the rule against conflicts of interest, the bar will have a much harder time burying a grievance against him (although that’s not to say that it couldn’t get buried).  Likewise, my clients could sue Mr. West for breach of fiduciary duty, in which case the bar would have a hard time ignoring a jury verdict. If a disciplinary case was filed, Mr. West would have the option of choosing a public jury trial or a private hearing in front of a grievance committee. Most attorneys choose the latter, and not without reason. The grievance committees are appointed primarily by the locally-elected member of the state bar’s board of directors, which means they are very much subject to political influence.

As I noted on BoogerCountyMafia.com, ethically challenged lawyers like Mr. Russ and Mr. West tend to seek election or appointment of themselves or their colleagues to the grievance committees or the board of directors. It seems to be an easy way to keep standards low and protect oneself from the consequences of professional misconduct.

Roy BrantleyAnd wouldn’t you know that Mr. West’s law partner, Roy Brantley, was the state bar director for the Bryan-College Station area until recently, thus he probably selected some of the members of the local grievance committee. At first glance, it would appear that Mr. West has an ace in the hole.

If, however, the Court of Appeals disqualifies Mr. West on the grounds that he violated the rule against conflicts of interest, Mr. West arguably loses his ace in the hole. Although no Texas court has formally decided the issue, a judicial finding that Mr. West violated the rule would probably be binding on the grievance committee, in which case the committee would have no choice but to find him “guilty.”  The committee could ostensibly give Mr. West a private reprimand, but that would be hard to justify if the Court of Appeals has already declared — publicly — that he violated the rules of professional conduct.

Lt. Governor Dan Patrick derails state bar reform

As I reported on March 9, 2015, Lt. Gov. Dan Patrick decided to abolish the Jurisprudence Committee of the Texas Senate. That means the Texas Senate is probably the only state or federal legislative chamber in the United States without a jurisprudence / judiciary committee. I guess he decided that our judges and lawyers are so well behaved that they don’t need any oversight.

I was particularly bummed about this because the committee was poised to take up legislation reforming both the State Commission on Judicial Conduct and the state bar. On January 7, 2015, I had written a letter to several officials, including Senate Jurisprudence Committee Chairman Royce West, about how the State Commission on Judicial Conduct had bungled the case against Judge Robert M. Stem of the 82nd District Court of Falls and Robertson Counties. A few days later, I received a call from the committee staff asking me to help draft legislation to reform both the commission and the state bar. Then the committee was abolished. So much for that.