Whether the Texas State Bar can take away Attorney General Ken Paxton’s law license could hinge on whether appellate justices believe the organization is trying to control what lawsuits he files on the state’s behalf — or whether the group has the jurisdiction to punish him for pushing false theories in a lawsuit over the 2020 presidential election.
Lawyers for Paxton argued before a three-justice panel of the Texas Fifth Court of Appeals on Wednesday that the bar overstepped its bounds when it sued the attorney general last year for professional misconduct. A disciplinary committee for the State Bar of Texas, the organization that regulates law licenses in this state, alleged the attorney general made “dishonest” representations in a widely condemned lawsuit — quickly rejected by the U.S. Supreme Court — that tried to throw out election results from former President Donald Trump’s 2020 loss in four battleground states.
Paxton’s lawyers argue that, by suing him, the bar is “attempting to control the Attorney General’s decision going forward about what types of lawsuits to file, and what kinds of legal theories to pursue,” Lanora C. Pettit, principal deputy solicitor general, told justices Wednesday.
That argument drew skepticism from Justice Erin Nowell.
“That’s a big leap,” Nowell said.
Paxton’s unsuccessful attempt to intervene in four other states’ elections leaned heavily on discredited claims of election fraud in those swing states.
The Texas bar has argued its conduct rules for lawyers apply to Paxton, too.
“The underlying attorney discipline case here is about ethics,” Michael Graham, an attorney representing the state bar, told justices. “The substantive questions at the heart of that attorney discipline case, like any other, have nothing to do with politics or anything else. They have everything to do with whether an attorney is engaged in professional misconduct and, if so, what’s the appropriate disciplinary sanction for that misconduct?”
A Collin County judge hasn’t ruled on the merits of the case but sided with the bar earlier this year when he ruled the group has the ability to sue — a decision Paxton quickly appealed. The appeals court is weighing whether to reverse the lower court’s ruling, but did not rule Wednesday.
The bar’s actions raise questions about whether any elected official who is also a lawyer could have their law license threatened if a member of the public doesn’t agree with them, Justice Emily Miskel said — with which Graham disagreed.
“General Paxton, for instance, has been Attorney General for almost a decade now, and to my knowledge, there’s not a raft of complaints or attorney disciplinary actions against him for filing suits,” Graham said.
But there might be if the bar is successful, Miskel said.
“If it’s effective, then everybody should (file a grievance against) any elected official who happens to be a lawyer because it’s a great way to get a second bite at the apple of a policy decision you don’t like,” Miskel said.
That may be the case, Graham said, but such a complaint would still have to pass muster with the bar.
A three-judge panel of the Dallas court who heard the case against Paxton — consisting of Democratic Justices Erin A. Nowell and Nancy Kennedy and Republican Justice Emily Miskel — said they would issue their decision at a later date.
The outcome could test the bar’s ability to sanction elected officials and is one of several misconduct suits it filed against Texas lawyers who fought the 2020 presidential election results.
Also in the crosshairs are Paxton’s second-in-command, Brent Webster, and Dallas attorney Sidney Powell, who recently pleaded guilty over efforts to overturn Donald Trump’s loss in Georgia.
A state district court judge ruled against Paxton in January, and the third-term Republican quickly appealed to the 5th Court of Appeals in Dallas. His law license is potentially at stake, though the state constitution does not require the attorney general to be licensed to practice law. Paxton did not appear in the courtroom Wednesday.
Webster faces a nearly identical suit by the bar, which was allowed to move forward this year by the El Paso appellate court after a district court initially dismissed it. Webster, now the first assistant attorney general, has appealed to the Texas Supreme Court.
The bar disciplinary committee also went after Powell, who joined Trump’s legal team after his 2020 presidential election loss, brought a number of unsuccessful lawsuits aiming to overturn the results and spread conspiracy theories about it. For example, she falsely claimed that Dominion Voting Systems machines used software created “at the direction” of former Venezuelan President Hugo Chávez to rig elections.
State District Judge Andrea Bouressa of Collin County threw out the bar’s suit against Powell in February over “numerous defects” in the way bar attorneys made the filing, and in May refused the bar’s request to reconsider her decision.
The bar appealed to the 5th Court of Appeals, the same one hearing the Paxton disciplinary case appeal Wednesday.
Earlier this month, a coalition of lawyers sent a letter to the state bar, urging the organization that oversees state lawyers to suspend or disbar Powell after she pleaded guilty last month in a Georgia election interference case. In that case, she agreed to a plea deal involving six years of probation, fines and the requirement she write an apology letter to the state and its residents.
See here for the latest on Powell and here for the latest on Webster; I don’t know when that appeal may happen. I am of course rooting for all three of them to face some consequences, which I hope will be the revocation of their law licenses. Trying to steal an election is a big deal and should be treated as such. We’ll see if the courts here are up to that challenge.