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State Bar of Texas

State Bar complaint against Ted Cruz was dismissed

This story ran a few days ago.

Not Ted Cruz

A lawyer group that brought ethics complaints against Trump attorneys is trying to make it tougher for lawyers to use the legal system to overturn elections.

The group, called the 65 Project, aims to change bar rules of professional conduct in 50 states and the District of Columbia to eliminate “fraudulent and malicious lawsuits” against fair election results.

“Lawyers purport to be self-regulatory and special stewards of the rule of law,” Paul Rosenzweig, a group advisory board member, told reporters Wednesday. “They failed in that responsibility” with the 2020 election.

The effort is a new front in the group’s self-described battle to protect democracy from abuse of the legal system. 65 Project has already filed 55 state bar ethics complaints against lawyers for former President Donald Trump over their efforts to overturn the results of the 2020 election.

The group’s targets have included former Foley & Lardner partner Cleta Mitchell, Sen. Ted Cruz (R-Texas) and lawyers Joseph diGenova and Boris Epshteyn.

Part of 65 Project’s new effort includes proposing rules to prevent attorneys in public office from violating attorney standards by amplifying false statements about elections.

The group is focusing initially on about a dozen states, including Ohio, Wisconsin, Texas, and Pennsylvania, and DC, said Michael Teter, a former Utah assistant attorney general who is Project 65’s managing director.

See here for the background. The Bloomberg Law story says that all of the 65 Project’s complaints are active, but that is not accurate. According to the DMN, which I was able to quickly peruse before the paywall came up, the complaint was dismissed by the State Bar of Texas on June 13, a few weeks after it was filed. The reason, as noted in the sub-head of the story, is that the State Bar said they lacked oversight since Cruz was acting as a Senator and not a lawyer; their dismissal letter didn’t address the merits of the complaint. A minor consolation, that. We are still waiting for a ruling in the complaint against Ken Paxton; a ruling by a different judge in the case against Paxton deputy Brent Webster does not bode well for the complainants, but I suppose it’s not over till it’s over. There’s still a possible appeal of that ruling, which as far as I know has not yet been filed. I fear all of them will get away with it, which is too depressing to contemplate. We’ll know soon enough.

District court judge dismisses State Bar complaint against Brent Webster

This is a bad ruling, and it needs to be appealed.

A Texas district judge has dismissed a professional misconduct lawsuit against a top aide of Attorney General Ken Paxton seeking to discipline them for their effort to overturn the 2020 presidential election.

Milam County Judge John W. Youngblood ruled last week that his court lacked the jurisdiction to rule on the matter, agreeing with the attorney general’s argument that doing so would violate the separation of powers doctrine by interfering in an executive branch matter.

“To find in the commission’s favor would stand for a limitation of the Attorney General’s broad power to file lawsuits on the state’s behalf, a right clearly supported by the Texas Constitution and recognized repeatedly by Texas Supreme Court precedent,” Youngblood wrote.

A similar case filed by the State Bar against Paxton is still before a Collin County judge and has not yet been decided.

[…]

Jim Harrington, a member of Lawyers Defending American Democracy, a coalition of lawyers including two former State Bar presidents, who filed a friend-of-the-court brief in support of the State Bar, called the ruling a “legal charade.” The group also filed complaints that prompted the bar to file suits against Paxton and Webster.

“The logic of the judge’s decision is that, if a lawyer works for the Attorney General, there is no way to hold the lawyer accountable for ethical violations and professional misconduct,” Harrington said in a statement. “In other words, the attorney general’s office is above the law. That is contrary to the principle of the Constitution, and we hope the State Bar will appeal the ruling.”

Ratner, a co-founder of the group and a Maryland attorney, said he, too, was disappointed in the ruling and added that it misconstrued the premise of the suit.

“While separation of powers authorizes the Attorney General to decide what lawsuits to file on the State’s behalf, we believe it does not authorize him to make misrepresentations and dishonest statements to a court in violation of his duties as a Texas-licensed lawyer,” Ratner said. “That’s what’s involved here.”

See here for the background, and here for a copy of the letter the judge sent. Not a formal opinion, though I suppose he could still write one, just a one page letter. Obviously, if this judge fully bought into Ken Paxton’s sleazy and self-serving line of defense, it doesn’t bode well for the complaint against him. I think Jim Harrington has this exactly right, and I hope the State Bar has the wisdom and the guts to appeal this. Anything less would be a dereliction of their duty. The Trib has more.

Paxton’s State Bar disciplinary hearing

We are slowly moving towards finally having some kind of result in this saga.

Best mugshot ever

Lawyers for Texas Attorney General Ken Paxton argued Wednesday that a Kaufman County judge should toss a lawsuit alleging he acted unethically in a legal challenge that sought to overturn the 2020 presidential election.

The first public hearing in the case inside a near-empty Kaufman County courtroom was not to determine the merit of the lawsuit lodged by a disciplinary commission of the state bar, but whether the group can seek sanctions against Texas’ top lawyer.

Paxton’s lawyers said the case, which could threaten his law license, is an unconstitutional attempt to control his office’s work and could have a chilling effect on future attorneys general. But an attorney for the commission countered that all lawyers should be subject to the same rules of professional conduct, no matter their position.

Judge Casey Blair, a Republican, did not issue a decision from the bench Wednesday. The outcome could establish the limits of the commission’s power to sanction lawyers who serve in high-ranking elected positions.

Any ruling will likely be appealed, meaning it could be months before the bar’s complaint over Paxton’s 2020 election lawsuit is heard in court, if ever.

[…]

In the hearing Wednesday, Christopher Hilton, a state attorney representing Paxton, argued that if the court allows the lawsuit to go forward, then “every future attorney general will have to fear for their law license rather than represent the state of Texas to the best of their ability and the way their voters expect that they would do.

“They would be hamstrung on unelected bureaucrats,” he said.

Royce LeMoine, a lawyer for the commission, said Paxton is being sued for his actions as a lawyer, not as the state’s attorney general, and that this is not a “select prosecution.”

“The commission’s disciplinary rules do not violate the respondent’s ability to advocate for his clients and the state of Texas,” LeMoine told the judge.

See here, here, and here for the previous updates. The Chron had a preview story on Tuesday.

“I hope it proceeds,” said Jim Harrington, one of the Texas lawyers who filed the State Bar complaint. “I hope [the judge] bites the bullet and denies the plea because it’s the right thing to do.”

[…]

In seeking to dismiss the disciplinary case, Paxton’s lawyers argue that it would violate the separation of powers doctrine for the Texas courts to “police” what they say was an executive branch decision. They also claim Paxton is protected by sovereign immunity, the legal principle that generally shields public officials from lawsuits.

In a separate motion, the attorney general’s office is asking the judge to allow the agency to intervene in the case on Paxton’s behalf.

The 2020 suit was not “dishonest, fraudulent, or deceitful,” they write in filings, and the State Bar’s issues with it essentially amount to a “political disagreement.”

“If Texans disapprove of the how the Attorney General exercises his authority, the remedy is to vote him out of office,” Paxton’s attorneys write. “The bar has no veto over how the Attorney General exercises his constitutional authority.”

Paxton was not the first attorney general to be asked to spearhead the case, and lawyers in his own office, including then-Solicitor General Kyle Hawkins, had argued against it, according to the New York Times. Hawkins, who would normally represent the state in such litigation, had no involvement in the case when it was filed and resigned within a month.

Top lawyers at the Florida attorney general’s office ridiculed the suit as “bats—t insane,” emails revealed.

Recent polls have shown the attorney general’s race is highly competitive between Paxton and his Democratic opponent Rochelle Garza, a former ACLU attorney. Garza, who has portrayed herself as the candidate who will bring integrity to the attorney general’s office, isn’t buying Paxton’s legal argument in this case.

“Political disagreements have to do with policies, not facts,” Garza said in a statement. “Even first-year law students know that legal accusations of wrongdoing require evidence, yet two years later, Paxton continues peddling his baseless lies about the 2020 election. Texans deserve an attorney general who believes in the rule of law and ethically uses the power of the office to serve Texans, not for their own political ends.”

Any decision in the case could foreshadow the result of a suit filed against Paxton’s First Assistant Attorney General Brent Webster by the Texas Bar for his involvement in the 2020 Supreme Court petition. Webster is also seeking to dismiss his case, and a hearing will be held Sept. 6 in Williamson County.

Paxton and Webster are being represented by lawyers from the attorney general’s office, as well as outside counsel. The office has not responded to questions about why they need both. The cost to taxpayers so far is over $46,000, and that’s before today’s initial proceedings.

The attorney general’s office has said the four in-house attorneys working on the case are not keeping track of their billable hours. The office did not explain why no timekeeping was done, despite its policy of doing so for other types of cases.

“To me, it’s really outrageous they’re using taxpayer money,” Harrington said. “This has nothing to do with his role as attorney general, absolutely nothing. It’s only his role as an attorney. Even if the State Bar disbars him, it has no effect on him being attorney general.”

You will not be surprised to know that I am on the State Bar’s side in this dispute. Paxton’s argument has merit to the point that elected officials should not be held accountable for political decisions by non-political offices like the State Bar. Where that falls apart is that he was also acting as a lawyer, and in doing so was violating the ethical and professional rules that lawyers are supposed to abide by. The evidence for that is overwhelming, from the sheer brazen falsity of the the claims he was making to the way similar lawsuits had been routinely batted aside by a myriad of courts to the fact that his own Solicitor General, whose job it is to make these arguments in court, refused to participate. If he can’t be held accountable for that then he has a blank check to do anything. That cannot be the right answer.

Anyway. If Paxton is found guilty, he will be subject to discipline from the State Bar, which could be anything from a scolding to being disbarred. While the latter seems unlikely to me – from what I have observed, it’s usually lawyers that do things like misappropriate clients’ money that get the boot – I don’t think it would be inappropriate given the seriousness of the issue. If that did happen, Paxton would still be able to hold the office of Attorney General. We’re not getting rid of him that easily. I don’t know what to expect and I don’t know how long it might take. With Paxton, we’re used to waiting on these things. Reform Austin has more.

Paxton so petty

This guy, man. What a stain.

Best mugshot ever

Attorney General Ken Paxton is escalating his feud with the State Bar of Texas by banning his office’s lawyers from speaking at any events organized by the bar.

Paxton’s office also will not pay for any attorneys to attend bar-sponsored events, according to an internal email obtained by The Texas Tribune.

The state bar is suing Paxton over his 2020 lawsuit challenging the presidential election results in four battleground states. Paxton has denounced the lawsuit, which alleges professional misconduct, as political harassment.

The internal email — sent Monday by Shawn Cowles, Paxton’s deputy attorney general for civil litigation — references the lawsuit, calling it “just the latest instance in the Bar’s ongoing evolution into a partisan advocacy group.”

“Let’s be clear: these are politically motivated attacks that violate separation-of-powers principles and offend our profession’s values of civil disagreement and diversity of thought,” Cowles wrote.

The new office policies are effectively immediately.

[…]

The state bar is an agency of the judiciary that licenses lawyers to practice in Texas and hosts regular training and networking events around the state.

Let’s put aside any question for a minute about whether or not Paxton has a legitimate gripe with the State Bar’s actions against him. (He doesn’t, but for the sake of argument let’s pretend he does.) He’s taking out his anger on his employees. How would you feel if your boss forbade you from doing any professional development because he’s in trouble with the cops? You have to be an exceptionally shitty person to act like this.

The State Bar’s response to Paxton

As you know, the State Bar of Texas filed a lawsuit against Ken Paxton in a Collin County district court in order to proceed with the complaint filed against Paxton for his attempt to overthrow the 2020 election by filing a massively dishonest and bad-faith lawsuit against four states won by President Biden. Paxton filed his response to that lawsuit a month ago, and now the State Bar has responded to his response.

Best mugshot ever

Weeks before the May 24 primary runoff election for attorney general, Paxton publicly tweeted the State Bar was following a “political narrative” by filing its action “just a few weeks before” his election. Paxton made the same argument in his court answer to the petition.

The commission filed its response last week, emphasizing the petition was filed the day after the election and the only significance to that filing date is that it occurred on the same day the presiding judge of the First Administrative Judicial Region signed the Order of Assignment; the commission couldn’t have filed sooner.

Moreover, the complaints were presented to an investigatory panel Jan. 5. After the panel found “credible evidence” to support a finding that Paxton violated the code of ethics, “the commission attempted to negotiate a resolution with (Paxton),” the response states.

It was Paxton that elected to have the disciplinary action heard in Collin County, and it was Paxton that “conjured up the specter of a political narrative,” the commission stated, to politicize an otherwise straightforward disciplinary proceeding.

In Paxton’s answer, he cited several defenses, including a lack of jurisdiction, a violation of separation of powers, and sovereign immunity.

Paxton asserts in his plea that he is unique, and unlike every other licensed attorney holding the position of state attorney general in the United States, is altogether exempt from having to comply with his state’s rules of professional conduct, even when acting directly as counsel of record before a court, the commission response states.

[…]

Paxton argued that as part of the executive branch the courts had no jurisdiction over him. The commission said this premise was tested and failed in two other states, Minnesota and Connecticut. Referring to In Re Lord, the Minnesota Supreme Court held, “the governor has no power to clothe the attorney general with immunity for disciplinary powers of the court when the attorney general appears in court as an attorney,” and that such a finding would “reduce the court to a tool of the executive.”

The commission said that, despite Paxton’s contentions that the disciplinary action was brought for political or retaliatory purposes, that action is not about his decision as the attorney general to file the case.

“Rather, the commission contends that the pleadings respondent prepared and filed contained numerous statements that were false, dishonest, and deceitful,” in violation of the Texas Disciplinary Rules of Professional Conduct, the response states.

Referring to Paxton’s separation of powers argument, the commission told the court the State Bar Act gives the Texas Supreme Court administrative control over regulations governing the practice of law, and the high court has inherent regulatory powers as well within the state Constitution.

On sovereign immunity, the commission said Paxton isn’t being sued in his official capacity, but personally in his capacity as a licensed attorney.

See here and here for the previous updates. A major component of the State Bar’s response has been to take on Paxton’s claims that the whole process is political, because that’s the main tool he has in his bag whenever someone tries to hold him accountable for anything. Indeed, the headline of this story notes how the State Bar turned Paxton’s complaints about the process against him, because Paxton can’t help but be a lying liar who lies a lot. I can’t say how effective any of this will be, but you do love to see it. I don’t know when the next update is, but as always I’ll be watching. The Statesman has more.

Here come the threats to businesses

The forced birth fanatics are just getting started. And it’s already ugly.

A group of Texas state House lawmakers called the Texas Freedom Caucus sent a letter to a law firm in Dallas last week threatening “consequences” over the firm’s decision to reimburse employees for the costs of out-of-state travel to obtain an abortion.

The lawmakers’ missive, sent and posted on its website on July 7, accused the firm, Sidley Austin LLP, of being “complicit in illegal abortions” in Texas that were allegedly performed before and after the Supreme Court issued its Dobbs ruling that struck down Roe v. Wade.

“It has come to our attention that Sidley Austin has decided to reimburse the travel costs of employees who leave Texas to murder their unborn children,” state Rep. Mayes Middleton (R), the chair of the Texas Freedom Caucus, wrote in the email to Sidley Austin, which is based in Chicago but has an office in Dallas. “We are writing to inform you of the consequences that you and your colleagues will face for these actions.”

Middleton claimed that the law firm was “exposing itself and each of its partners to felony criminal prosecution and disbarment,” citing Texas’ anti-abortion law from 1925 that the state can now enforce after the Supreme Court struck down Roe last month.

“We will also be introducing legislation next session that will impose additional civil and criminal sanctions on law firms that pay for abortions or abortion travel,” Middleton warned.

The new legislation, according to the letter, will criminalize any Texas company’s reimbursement of “elective abortions” or “abortion-related expenses — regardless of where the abortion occurs, and regardless of the law in the jurisdiction where the abortion occurs.”

It will also require the State Bar of Texas to disbar any lawyer who violates the states’ ban on abortion, Middleton warned.

The email included a CC to Texas Attorney General Ken Paxton (R), who has sworn to enforce the state’s abortion restrictions in the wake of the Supreme Court’s strikedown of Roe.

We’ve known this was coming – these guys are not subtle – and we’re already seeing some of it with other big national companies. As it happens, Monday’s CityCast Houston podcast featured an interview with Jane Robinson, 2020 Democratic candidate for Chief Justice of the 14th Court of Appeals and partner with litigation firm AZA, which is offering similar benefits to its employees. They will for sure be in the crosshairs as well. Hopefully, they’ll be good enough at litigating to hold back the mob, but there’s only so much they’ll be able to do if the laws get changed sufficiently. This is among the things we’re voting on this November.

Paxton responds to State Bar lawsuit against him

Blah blah blah, you can’t sue me, blah blah blah.

Best mugshot ever

Texas Attorney General Ken Paxton is seeking to dismiss a professional misconduct lawsuit filed by the state bar against him related to his legal challenge of the 2020 presidential election, court documents show.

In a court filing June 27, Paxton asked a district court in Collin County to dismiss the Texas State Bar’s lawsuit. The state’s top lawyer, a Republican who is seeking a third term in office, said state bar investigators are biased and politically motivated against him.

[…]

In the court filing, Paxton said the state bar’s Commission for Lawyer Discipline, which filed the suit, had no authority to “police the decisions of a duly elected, statewide constitutional officer of the executive branch.” Paxton also stood by his decision to challenge the results of the 2020 election.

See here for the previous update. This is more or less the standard way to respond, and indeed Paxton is making the same arguments he’s made in the past, because there’s nothing new here. It’s just a matter of eventually getting a judge to rule on it. I don’t know what the potential for delay is here, but we know from past and recent experience, if there’s one thing Ken Paxton is good at, it’s throwing up every possible obstacle in the path of holding him accountable. I don’t expect this to be any different, but maybe I’ll be surprised.

Where are we with the Paxton whistleblower lawsuit?

We are in the familiar position of waiting for the drawn-out appeals process to conclude. Pull up a chair and make yourself comfortable.

Best mugshot ever

The appeals process has grown a bit longer in state Attorney General Ken Paxton’s effort to dismiss a whistleblower lawsuit by four top agency officials who claim they were improperly fired in 2020 after accusing him of accepting bribes and other misconduct.

Paxton turned to the Texas Supreme Court 7½ months ago after two lower courts rejected his bids to toss out the lawsuit.

Last month, the Supreme Court told Paxton and the whistleblowers to provide justices with a deeper dive into the legal issues involved, kicking off a second round of legal briefing that was recently extended when the court granted Paxton’s request for an extra month to file his expanded brief.

Paxton’s brief is now due July 27, and although the court told Paxton that additional extensions aren’t likely to be granted, the move means the final brief isn’t due until Aug. 31 at the earliest.

That moves the case into election season as Paxton seeks a third four-year term against a Democrat, Rochelle Garza, who has made questioning Paxton’s ethics a campaign centerpiece. Three opponents tried the same tactic against Paxton in this year’s GOP primaries without success.

The timing also puts the case close to the two-year anniversary of when eight top officials of the attorney general’s office met with FBI agents and other investigators to relate their suspicions that Paxton had misused the powers of his office to help a friend and political donor, Austin real estate investor Nate Paul.

See here and here for the most recent updates. Paxton’s argument is that as an elected rather than appointed official, he doesn’t count as a “public official” under the Texas Whistleblower Act, so the employees who fired him have no grounds to sue. He has other arguments, but that’s the main thing that will be of interest to the Supreme Court. I’m sure you can surmise what I think, but if you want to dig deeper you can click the Texas Whistleblower Act tag link and review other posts in this genre.

Just as a reminder, we are also waiting for the FBI to take some kind of action in their investigation of the Ken Paxton-Nate Paul dealings, the State Bar complaint against Paxton for his attempt to overthrow the 2020 election should have a hearing sometime later this summer, and of course there’s the granddaddy of them all, the original state charges that Paxton engaged in securities fraud, which are now eight years old. He’s sure been a busy boy, hasn’t he?

State Bar finally files that professional misconduct lawsuit against Paxton

We’ve been eagerly awaiting this.

Best mugshot ever

A disciplinary committee for the State Bar of Texas on Wednesday filed a professional misconduct lawsuit against Attorney General Ken Paxton for his attempt to overturn the results of the 2020 presidential elections in four battleground states won by President Joe Biden.

The filing in Collin County by the Commission for Lawyer Discipline, a standing committee of the state bar, is an extraordinary move by the body that regulates law licenses in the state against the sitting attorney general. It stems from complaints against Paxton for a lawsuit that the U.S. Supreme Court threw out, saying Texas lacked standing to sue and that Paxton’s political opponents called “frivolous.”

It seeks a sanction against Paxton, which will be determined by a judge, that could range from a private reprimand to disbarment.

In its filing, the commission said Paxton had misrepresented that he had uncovered substantial evidence that “raises serious doubts as to the integrity of the election process in the defendant states.”

“As a result of Respondent’s actions, Defendant States were required to expend time, money, and resources to respond to the misrepresentations and false statements contained in these pleadings and injunction requests even though they had previously certified their presidential electors based on the election results prior to the filing of Respondent’s pleadings,” the lawsuit read.

The lawsuit also says Paxton made “dishonest” representations that an “outcome determinative” number of votes were tied to unregistered voters, votes were switched by a glitch with voting machines, state actors had unconstitutionally revised their election statutes and “illegal votes” had been cast to affect the outcome of the election.

The lawsuit says Paxton’s allegations “were not supported by any charge, indictment, judicial finding, and/or credible or admissible evidence, and failed to disclose to the Court that some of his representations and allegations had already been adjudicated and/or dismissed in a court of law.”

The complaint asks for a finding of professional misconduct against Paxton, as well as attorney’s fees and “an appropriate sanction.”

[…]

The lawsuit against Paxton stems from multiple complaints filed by Kevin Moran, president of the Galveston Island Democrats; David Wellington Chew, former chief justice of the Eighth District Court of Appeals; attorney Neil Kay Cohen; attorney Brynne VanHettinga; and Gershon “Gary” Ratner, the co-founder of Lawyers Defending American Democracy.

See here, here, and here for some background; this post contains some technical details from the original complaint. As far as I can tell, this encompasses all of the 2020 election-related complaints against Paxton; there’s a separate complaint having to do with his threats against the Court of Criminal Appeals for not letting him prosecute “voter fraud” cases at his discretion, whose disposition is not known to me at this time. There’s also the complaint against Brent Webster, which will be litigated in Williamson County, and more recently a complaint against Ted Cruz that will presumably take some time to work its way through the system. That first 2020 election complaint against Paxton was filed last June, so it took nearly a year to get to this point. I have no idea if that’s a “normal” time span for this – I suspect nothing about this is “normal” anyway.

One more thing: I presume this was filed in Collin County because that’s where Paxton passed the bar, or some other technical reason like that. The Chron adds a bit of detail about that.

Under the state bar’s rules, disciplinary suits are filed in the county in which the attorney primarily practices. If there’s more than one, the bar files in the county where the attorney lives — Paxton indicated Collin County. Similarly, the suit against Webster was filed in his hometown of Williamson County. That determination is up to the subject of the suit, according to the rules.

Also per the bar’s rules, these suits are heard by an appointed judge from another district.

In Paxton’s case, it will be Judge Casey Blair of Kaufman County, a Republican elected in 2014. Webster’s case will be heard by Judge John Youngblood of Milam County, also a Republican who was first appointed by Gov. Rick Perry in 2011 and first elected in 2012.

Good to know. I can’t wait to see what happens next.

State Bar complaint filed against Ted Cruz

Good.

Not Ted Cruz

A group of lawyers want the State Bar of Texas to investigate Republican U.S. Sen. Ted Cruz for his “leading” role in attempting to overturn the 2020 presidential election results.

Lawyers with the 65 Project, an organization aiming to hold attorneys accountable for trying to keep former President Donald Trump in power despite his reelection loss, filed an ethics complaint with the association Wednesday. It cites Cruz’s role in a lawsuit seeking to void absentee ballots, numerous claims he made about voter fraud, plus an attempt to stop four states from using 2020 election results to appoint electors — all of which failed.

“Mr. Cruz knew that the allegations he was echoing had already been reviewed and rejected by courts. And he knew that claims of voter fraud or the election being stolen were false,” the complaint says.

[…]

Cruz represented Pennsylvania Republicans in their efforts to cast out nearly all 2020 absentee ballots in their state, which the Pennsylvania Supreme Court rejected. Cruz accused the state court of being “a partisan, Democratic court that has issued multiple decisions that were just on their face contrary to law.”

The complaint wants to see Cruz disciplined. It does not say how, though it mentions a New York appellate court’s suspension of Rudy Giuliani’s law license. Guiliani was one of Trump’s lawyers who also repeated false voter fraud claims.

Cruz also agreed to represent Trump in a Texas lawsuit aiming to bar Pennsylvania, Georgia, Michigan and Wisconsin from using its election results. The complaint argues Cruz pushed forward with a frivolous claim, which the U.S. Supreme Court quickly denied.

Here’s the 65 Project webpage; the “65” refers to the “65 lawsuits based on lies to overturn the election and give Trump a second term” that were filed by “an army of Big Lie lawyers. You can see the complaint filed against Cruz here, and the tracker they have of other complaints here. There were several filed on March 7 of this year; the one filed against Cruz was the first since then. None have been resolved yet so it’s too soon to say how effective this group will be. The one thing I can say is that this group was not involved in any of the State Bar complaints against Ken Paxton. Here’s a Vanity Fair story dated March 8 with some background on the group and its members.

Will this work? The State Bar complaints against Paxton over his dangerous and frivolous lawsuit against four Biden-won states is proceeding, though the formal lawsuit that represents the next step has not yet been filed as far as I can tell. I’d say there’s a reasonable argument that Paxton was more directly involved in the seditious and unethical behavior than Cruz was, which may make the State Bar less receptive to the filers’ case, but he wasn’t just a bystander either. Given how long it’s taken the Paxton case to get to a resolution point I’d say don’t hold your breath waiting on something to happen with this one. If it does move forward, great. Hope for the best. But do please put your energy into beating Ted Cruz in his next election, and if he steps away from the Senate to run for President do what you can to elect a Democrat to replace him. That will ultimately have a much bigger effect.

One more thing: This NYT story is headlined “Group Seeks Disbarment of Ted Cruz Over Efforts to Overturn 2020 Election”. While the complaint lays out multiple alleged violations of the Texas Disciplinary Rules of Professional Conduct (TDPRC), it does not suggest a remedy. Instead, it merely asks that the State Bar investigate and “apply the standards set for lawyers within the TDRPC, and impose sanctions against Mr. Cruz for violating those requirements”. Certainly, based on the complaints against Paxton for similar behavior, having Cruz’s law license suspended would be on the table if the State Bar were to rule against him, but I presume there would be other options as well. We’ll see if and when it ever gets that far. TPM has more.

UPDATE: Texas Lawyer provides a bit more detail.

In Cruz’s case, the 65 Project alleges he agreed to act as a lawyer in litigation before the U.S. Supreme Court in two bogus cases, Kelly v. Pennsylvania and Texas v. Pennsylvania. Acting in tandem with Trump’s legal team, Cruz had a significant role in an “anti-democratic plot, intentionally amplifying false claims about the 2020 election on multiple occasions,” the complaint states.

The Texas v. Pennsylvania lawsuit, filed by Paxton and Assistant Attorney General Brent E. Webster, has to date resulted in a State Bar lawsuit against Webster in Williamson County’s 368th District Court. Also, Paxton acknowledged on May 6 that the bar would be filing suit against him.

The Commission for Lawyer Discipline’s petition in the Webster case is instructive in that it lays a roadmap for how the bar might proceed against Paxton and Cruz.

The Texas v. Pennsylvania suit, which also challenged the vote count in Georgia, Michigan and Wisconsin, alleged without evidence several forms of vote rigging.

“Respondent’s representations were dishonest. His allegations were not supported by any charge, indictment, judicial finding, and/or credible or admissible evidence, and failed to disclose to the court that some of his representations and allegations had already been adjudicated and/or dismissed in a court of law,” the commission’s petition states.

The filing against Webster refers to the bar rule against lawyers engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

See here for more on the Webster case. We’ll see if indeed the State Bar follows this roadmap.

More State Bar disciplinary stuff

A new twist, as a new player enters the picture.

Best mugshot ever

The Texas State Bar has filed a suit in Williamson County district court against First Assistant Attorney General Brent Webster for his involvement in the state’s lawsuit seeking to overturn the results of the 2020 election, alleging Webster committed professional misconduct by making false and misleading statements in the petition.

A similar disciplinary suit is expected against Paxton, who reiterated Friday his contention that the group is targeting him because it disagrees with his politics. As of Friday afternoon, no suit had been filed.

Texas’ 2020 suit before the U.S. Supreme Court was almost immediately tossed, and Trump’s own Justice Department found no evidence of fraud that could have changed the election’s outcome. The bar is treating the case as a frivolous lawsuit as it seeks sanctions including possible disbarment for the two public officials.

“I stand by this lawsuit completely,” Paxton said on Twitter. “I am certain that the bar will not only lose, but be fully exposed for what they are: a liberal activist group masquerading as a neutral professional association.”

Then-Solicitor General Kyle Hawkins, the state’s chief litigator who resigned about a month after the election challenge was tossed, was notably absent from the filing, though Hawkins never explained why, raising questions about whether he supported the legal challenge. Solicitor generals are typically involved in all major appellate litigation.

[…]

The bar complaints against Paxton and Webster alleged that their petition to overturn the 2020 election was frivolous and unethical, and that it includes statements that they knew to be false. In Webster’s case, it is clear that the bar agrees.

“Respondent’s representations were dishonest,” the suit states. “His allegations were not supported by any charge, indictment, judicial finding, and/or credible or admissible evidence, and failed to disclose to the court that some of his representations and allegations had already been adjudicated and/or dismissed in a court of law.”

The suit also alleges that Webster “misrepresented” that Texas had “uncovered substantial evidence,” raising doubts about the integrity of the election and had standing to sue before the U.S. Supreme Court. The four battleground states that Texas sued — Georgia, Pennsylvania, Michigan, and Wisconsin — were then forced to have to spend time, money and other resources responding to these claims, it said.

The suit does not specify what type of punishment the bar recommends for Webster.

The suit against Webster was sparked by a March 2021 complaint by Brynne VanHettinga, an former member of the bar who described herself as a “citizen concerned about fascism and illegal overthrow of democracy.” VanHettinga could not be immediately reached Friday.

See here and here for some background. Looking at that Trib story that I based yesterday’s post on, I see it also includes a couple of paragraphs about the action against Brent Webster, who replaced Jeff Mateer after he was purged as a whistleblower against Paxton, and who co-authored the self-exoneration report from that saga. I was not aware of any State Bar complaints against Webster in this matter – the two against Paxton were filed after the VanHettinga complaint against Webster. A Google News search on VanHettinga’s name only yielded the Chron and Trib stories. You can see what a challenge it is to keep up with all this.

As for the Paxton piece of it, this is more of the story I blogged about yesterday. The main thing to learn, which the Trib story also noted, is that there hasn’t yet been a lawsuit filed against Paxton. It sounded like that would be filed in Travis County when it happens, but maybe this means it will happen in Williamson instead. Since it seems that the judge will be selected from the broader judicial administrative region, it’s not clear that where the trial itself is matters.

Paxton whines about the disciplinary process he selected

My head hurts.

Best mugshot ever

Texas Attorney General Ken Paxton, the state’s top lawyer, said Friday the state bar was suing him for professional misconduct related to his lawsuit challenging the 2020 presidential election.

“I have recently learned that the Texas State Bar — which has been waging a months-long witch-hunt against me — now plans to sue me and my top deputy for filing Texas v. Penn: the historic challenge to the unconstitutional 2020 presidential election joined by nearly half of all the states and over a hundred members of Congress,” Paxton said in a statement released on social media. “I stand by this lawsuit completely.”

A few hours after saying he was being sued by the bar, Paxton’s office announced an investigation into the Texas Bar Foundation for “facilitating mass influx of illegal aliens” by donating money to groups that “encourage, participate in, and fund illegal immigration at the Texas-Mexico border.” The foundation is made up of attorneys and raises money to provide legal education and services. It is separate from the State Bar of Texas, which is an administrative arm of the Texas Supreme Court.

Representatives for the Texas Bar Foundation could not immediately be reached for comment. Trey Apffel, executive director of the State Bar of Texas, said the bar and the foundation are privately funded and don’t receive taxpayer funds.

“The foundation is separately funded through charitable donations and governed by its own board of trustees,” Apffel said. “While we are unsure what donations are at issue here, we are confident that the foundation’s activities are in line with its mission of enhancing the rule of law and the system of justice in Texas.”

Paxton, an embattled Republican seeking a third term, said state bar investigators who now appear to be moving on a lawsuit against him are biased and said the decision to sue him, which comes a week before early voting in his GOP runoff for attorney general, was politically motivated. He is facing Land Commissioner George P. Bush in the May 24 election.

“Texas Bar: I’ll see you and the leftists that control you in court,” he said. “I’ll never let you bully me, my staff or the Texans I represent into backing down or going soft on defending the Rule of Law — something for which you have little knowledge.”

In fact, the investigation into Paxton has been pending for months. Last July, a group of 16 lawyers that included four former state bar presidents filed an ethics complaint against Paxton arguing that he demonstrated a pattern of professional misconduct, including his decision to file a federal lawsuit seeking to overturn the 2020 presidential elections in battleground states where former President Donald Trump, a Paxton ally, had lost. The attorneys said the lawsuit was “frivolous” and had been filed without evidence. The U.S. Supreme Court dismissed it, saying Texas had no standing to sue.

In March, the investigation moved ahead and Paxton was given 20 days to decide whether he wanted a trial by jury or an administrative hearing to resolve the complaint.

On Friday, a spokesperson for the state bar said the group had not been notified of a decision. Jim Harrington, a civil rights attorney and one of the lawyers who filed the ethics complaint, said he also had not been notified of a trial but that Paxton would have received notification.

“I was as surprised as you were to see that tweet this morning,” Harrington said.

See here for some background. You may note that happened in early March, almost two months ago, which is considerably more than 20 days. I don’t know if time moves more slowly in this context or if there just wasn’t any mechanism to enforce the decision Paxton had to make. Whatever the case, he made it and now he’s fundraising off of it. At least that much is par for the course, at least for him. While this case will be heard in Travis County, the judge who oversees it will be selected from the Texas Judicial Branch’s administrative region, which is a fairly large area. I don’t know how any of that works, either – this whole thing is kind of a black box. But it’s moving along, which is more than we can say for some other messes involving Ken Paxton.

UPDATE: Via email, a statement from the Texas Bar Foundation:

“The Foundation is extremely disappointed to learn that AG Paxton has decided to use taxpayer dollars on a fruitless exercise. Had AG Paxton taken the time to come and speak with us rather than issue a press release, I am confident that he would have found no wrongdoing on the part of the Foundation. Nevertheless, the Foundation is happy to cooperate and provide the AG’s office with documents and information relevant to the investigation.

Thousands of Texans have had their lives changed because of grants received from the Texas Bar Foundation. General Paxton is misinformed. The Foundation does not receive funding from taxpayer dollars. To the contrary, our grants are made possible by the generosity of Texas lawyers. We receive voluntary contributions from the Fellows of the Foundation, and those contributions enable the Foundation to award millions of dollars in grants. We will proudly continue to award grants to much-needed charities throughout Texas going forward.”

There’s a story in today’s Chron that has more information than this Trib story. I’ll do a separate post on that.

Guess who’s paying for Ken Paxton’s defense against those state bar complaints?

You are, of course. What did you expect?

Best mugshot ever

Texas taxpayers are on the hook for $45,000 so far in legal defense for Attorney General Ken Paxton as he attempts to ward off multiple complaints to the State Bar over his failed lawsuit seeking to overturn the 2020 presidential election at the U.S. Supreme Court.

Paxton faces at least three professional misconduct complaints that have been filed against him since the December suit, which the high court swiftly dismissed for lack of jurisdiction. The election case involved disputed presidential election ballots in Pennsylvania, Georgia, Michigan and Wisconsin.

Two complaints — one filed in June by a Democratic Party activist, consolidated with a few others, and another in July filed by the nonprofit Lawyers Defending American Democracy and 16 Texas lawyers, including four former presidents of the state Bar — alleged the Supreme Court suit was frivolous and that it included pleadings that Paxton knew to be false.

The Lawyers Defending American Democracy complaint is moving forward and will be heard by either a district court judge or an administrative panel, the complainants say.

“This is about his individual license, which is irrelevant to his position in office, so why shouldn’t he pay for it?” said Jim Harrington, one of the lawyers who filed a complaint against Paxton and a retired founder of the Texas Civil Rights Project, a nonprofit that advocates for voting rights. “He gets to do this game on Jan. 6, this unconstitutional Supreme Court action, and then turn around and have us pay twice for it? It’s outrageous.”

[…]

Attorneys with the Austin-based Gober Group and College Station-based West, Webb, Allbritton & Gentry billed more than 94 hours at various rates for work related to the bar complaints. Chris Gober, a GOP election lawyer known for his work defending the state’s political maps, had the highest rate at $525 an hour.

Some of the work described in the invoices included reviewing documents related to the complaints, discussing strategy and considering options, preparing for meetings with the Texas State Bar and reviewing and revising correspondence with the agency.

However, a response to the June batch of bar complaints against Paxton, which the office posted on its website, was signed by Deputy First Assistant Attorney General Grant Dorfman; none of the outside attorneys’ names appear on the filing. It’s unclear why both in-house and outside counsel appear to have been engaged in Paxton’s defense.

Because there’s free money to give to Paxton’s pals. This has been another edition of “Simple Answers to Simple Questions”.

See here for the most recent update. There is of course a hypocrisy angle in all of this, because of course there is.

Steve Fischer, elected State Bar director for the Western District of Texas and one of the attorneys who filed the 2015 complaint, said taxpayers shouldn’t have to bear the cost of Paxton’s defense.

“People elect an attorney general to do child support, whatever — not for that,” Fischer said. “To turn his office into his defense team, it just doesn’t sit right with me.”

According to a response to some of the latest complaints by the attorney general’s office in July, the State Bar Disciplinary Counsel received 81 grievances against Paxton and three against First Assistant Brent Webster related to the 2020 Supreme Court suit. All were dismissed upon initial review. Some were reinstated after appeals.

[…]

While the attorney general’s office’s role in fighting bar complaints may be a legal gray area, the agency is statutorily required to defend state officials and state agencies in court. Yet Paxton’s office has declined to represent those state agencies on several recent occasions, typically when it conflicts with his political inclinations.

In 2018, for example, his office refused to defend the Texas Ethics Commission as one of his largest political donors sues to dismantle the agency. Then again, in January 2020, the office abandoned the State Commission on Judicial Conduct when it was sued by a Waco judge whom the agency disciplined for refusing to perform same-sex marriages.

Paxton’s main complaint about the State Bar allowing this matter to proceed is that both the filing and the State Bar itself are motivated by partisan politics. Not him, though, of course. Never him.

You may think well, maybe we don’t want the government to pay for this government official’s defense because he’s so odious, but what happens when we elect a Democratic AG? Should Rochelle Garza or Joe Jaworski have to pay for their own defense against the avalanche of frivolous partisan complaints that will surely be filed against them? That would be bad, except that as the story notes the vast majority of the ones against Paxton got dismissed for lack of merit. I doubt it would be any different with a different AG. At least, it better not be. As long as it isn’t, and as long as the next AG has better ethical standards than Ken Paxton – an exceptionally low hurdle to clear – it shouldn’t be an issue.

Of course Ted Cruz supported sedition

None of this is surprising. And I’m certain there will be more, that this is just the tip of the iceberg.

Not Ted Cruz

Sen. Ted Cruz was dining near the Capitol on the evening of Dec. 8, 2020, when he received an urgent call from President Donald Trump. A lawsuit had just been filed at the Supreme Court designed to overturn the election Trump had lost, and the president wanted help from the Texas Republican.

“Would you be willing to argue the case?” Trump asked Cruz, as the senator later recalled it.

“Sure, I’d be happy to” if the court granted a hearing, Cruz said he responded.

The call was just one step in a collaboration that for two months turned the once-bitter political enemies into close allies in the effort to keep Trump in the White House based on the president’s false claims about a stolen election. By Cruz’s own account, he was “leading the charge” to prevent the certification of Joe Biden as president.

An examination by The Washington Post of Cruz’s actions between Election Day and Jan. 6, 2021, shows just how deeply he was involved, working directly with Trump to concoct a plan that came closer than widely realized to keeping him in power. As Cruz went to extraordinary lengths to court Trump’s base and lay the groundwork for his own potential 2024 presidential bid, he also alienated close allies and longtime friends who accused him of abandoning his principles.

Now, Cruz’s efforts are of interest to the House committee investigating the Jan. 6 attack on the U.S. Capitol, in particular whether Cruz was in contact with Trump lawyer John Eastman, a conservative attorney who has been his friend for decades and who wrote key legal memos aimed at denying Biden’s victory.

As Eastman outlined a scenario in which Vice President Mike Pence could deny certifying Biden’s election, Cruz crafted a complementary plan in the Senate. He proposed objecting to the results in six swing states and delaying accepting the Electoral College results on Jan. 6 in favor of a 10-day “audit” — thus potentially enabling GOP state legislatures to overturn the result. Ten other senators backed his proposal, which Cruz continued to advocate on the day rioters attacked the Capitol.

The committee’s interest in Cruz is notable as investigators zero in on how closely Trump’s allies coordinated with members of Congress in the attempt to block or delay certifying Biden’s victory. If Cruz’s plan worked, it could have created enough chaos for Trump to remain in power.

“It was a very dangerous proposal, and, you know, could very easily have put us into territory where we got to the inauguration and there was not a president,” Rep. Liz Cheney (R-Wyo.), a Jan. 6 committee member, said earlier this year on the podcast “Honestly. And I think that Senator Cruz knew exactly what he was doing. I think that Senator Cruz is somebody who knows what the Constitution calls for, knows what his duties and obligations are, and was willing, frankly, to set that aside.”

It’s a long story, from the WaPo and reprinted in the Trib, and it just gets worse from there. I believe that Cruz knew exactly what he was doing and that he had no legal leg to stand on, and also that he didn’t care. Maybe he’d get lucky with the judges, who can say. It was all about winning and power anyway. Of course, it’s a fine line between that kind of blase nihilism and Ginni Thomas’ full-on Qanon ravings. For that, they both richly deserve an in depth investigation from the January 6 committee, and a criminal contempt citation if they refuse.

One more thing:

In the weeks that followed, as Trump allies lost a string of election cases, Cruz began suggesting he could lead a more effective legal strategy. He talked about his success in helping Bush’s legal team and how he had argued a total of nine cases before the Supreme Court, mostly as the Texas solicitor general. Two days later, he announced he had agreed to represent Pennsylvania Republicans in their effort to block certification of that state’s presidential results. The Supreme Court rejected that request, though, a near-fatal blow to efforts to overturn the election in the courts.

But the next day, Trump and Cruz focused on another avenue to put the matter before the Supreme Court: a case filed by Texas Attorney General Ken Paxton, who argued his state had standing to ask the court to throw out election results in Georgia, Pennsylvania, Michigan and Wisconsin.

When Trump called on Dec. 8 as Cruz dined out, the president asked whether he was surprised about the loss of the Pennsylvania case, Cruz later recalled on his podcast, “Verdict with Ted Cruz.” Cruz said he was unhappy but “not shocked” that the federal court did not take a case about state law: “That was a challenging hurdle.”

When Cruz agreed to Trump’s request to argue the Texas case, it shocked some who knew him best. One adviser said he called Cruz to express dismay, telling the senator it went against the principles on which he built his political brand.

“If you’re a conservative federalist, the idea that one state can tell another state how to run their elections is outrageous, but he somehow contorted in his mind that it would be okay for him to argue that case,” said the adviser, who spoke on the condition of anonymity to describe a private conversation.

Rep. Chip Roy (R-Tex.), who had served as Cruz’s chief of staff and was a former first assistant attorney general in Paxton’s office, tweeted that the case “represents a dangerous violation of federalism” that “will almost certainly fail.” He did not respond to a request for comment.

Cruz’s spokeswoman said that he agreed to Trump’s request because “he believed Texas deserved to have effective advocacy” but said that “he told President Trump at the time that he believed the Court was unlikely to take the Texas case.”

Just as a reminder, this ridiculous lawsuit was the basis for two State Bar of Texas complaints against Ken Paxton (and another against Sidney Powell) that in a just world will result in their disbarments. Surely a similar complaint against Cruz might be warranted. The Texas Signal has more.

State Bar sues Sidney Powell for professional misconduct

Busy times at the State Bar of Texas.

The State Bar of Texas has filed a disciplinary suit against former Trump campaign attorney Sidney Powell alleging that she committed professional misconduct when she filed multiple lawsuits seeking to invalidate the results of the 2020 presidential election.

The bar, in the petition filed March 1 in state district court in Dallas, said it had received 10 complaints against Powell in the last two years.

The Dallas attorney, who did not immediately respond to requests for comment, filed suits across the country seeking to overturn President Joe Biden’s wins, making far-fetched and unfounded claims of widespread voter fraud.

[…]

In Powell’s case, the Commission for Lawyer Discipline, a committee of the state Bar, found she had “no reasonable basis” to deny that the lawsuits she filed were frivolous, violating federal court procedure and state misconduct rules.

The commission also alleges that Powell “unreasonably increased” the costs of the cases and unreasonably delayed their resolution, including when she failed to drop a Michigan lawsuit even after it was clearly too late for the court to grant the relief she was seeking. (Powell was already sanctioned by a Michigan judge in December 2021 for the misconduct and ordered to pay more than $175,000 in legal fees.)

The suit also claims Powell filed an altered document, a certification of Dominion voting equipment from the Georgia Secretary of State, to falsely purport it was undated. The true document from the state’s website reveals that Powell cropped out a date at the bottom of the file, court records show.

This story hit on the same day as the story about one of the State Bar complaints against Ken Paxton proceeding. Like I said, busy times over there. I do not know why the State Bar is filing a lawsuit rather than adjudicating a complaint against Powell, but since one of the options for resolving the complaint against Paxton is to have a hearing in a district court, perhaps that’s what that looks like. Whatever the case, I hope they nail her, because Lord knows we need some consequences for these malefactors.

Powell and several other legal quacks and frauds have been sued by a couple of the voting machine vendors that they routinely attacked after the election. One lawsuit, by Dominion, survived a motion to dismiss and will proceed, with Dominion not seeking to settle but to aim for the big win. Another suit, filed by Smartmatic, will proceed against Fox News and Rudy Giuliani but not against Powell, as the judge ruled he did not have jurisdiction in that matter. Compared to that, the State Bar maybe revoking her license seems like small potatoes, but it doesn’t change the fact that she doesn’t deserve to be allowed to practice law. Let’s hope this is the first step towards that happening.

State Bar complaint against Paxton to proceed

Nice, but I’m still not expecting there to be consequences for him. I will be delighted to be wrong about that.

Best mugshot ever

A Texas State Bar complaint against Attorney General Ken Paxton is moving forward and will be heard by either a district court judge or an administrative panel, the complainants said Tuesday.

The complaint was filed in July 2021 by the nonprofit Lawyers Defending American Democracy and 16 Texas lawyers, including four former presidents of the state Bar. It alleges that Paxton committed professional misconduct when he filed the December 2020 suit before the U.S. Supreme Court seeking to overturn the presidential election results in four battleground states. The complainants say the suit was frivolous, knowingly false and deceitful.

The deadline for a decision on whether there is just cause to move forward, prescribed by the Texas Rules of Disciplinary Procedure, was Sunday, and the complainants have not been notified of a dismissal.

“This is a big step because this rarely happens,” said Jim Harrington, one of the Texas lawyers who joined the complaint and a retired founder of the Texas Civil Rights Project, a nonprofit that advocates for voting rights. “I just know from being a lawyer for 50 years, this is very rare.”

[…]

Under the disciplinary rules, Paxton has 20 days to decide whether to request the case be heard by a district court, where proceedings are public, or by an evidentiary panel. If he chooses the evidentiary panel, the proceedings will be kept private unless public sanctions are imposed. Dismissals or private sanctions are not made public.

Harrington rejected the claim by Paxton that the complaint was guided by political bias.

“That’s the way he always is. Anyone who disagrees with him is on some sort of political witchhunt,” he said. “It doesn’t matter to me what a person’s politics are … We lawyers, it’s very clear we have an ethical responsibility. It’s very clear we have to follow the rules.”

See here for some background on the July complaint against Paxton. There was a similar complaint filed in June, to which Paxton responded in July. I do not know what the status of that complaint is – you’d think it would be ahead of this one in the queue, but as noted I don’t know how this process works. Last month, there was another complaint filed over Paxton’s thuggish attempt to intimidate the Court of Criminal Appeals for its rejection of his attempt to become the supreme prosecutor of all voter fraud allegations.

Anyway. Harrington states in the article that he believes it would be appropriate for Paxton to lose his law license over this, which is the maximum penalty the Bar can levy. I agree with that, but please note that would not disqualify him from being the Attorney General. It would just be humiliating, if it’s possible for Ken Paxton to be humiliated. My guess is that he’ll choose the evidentiary panel to proceed, but we’ll know soon enough. The Trib has more.

Yet another State Bar complaint filed against Paxton

Put it on his tab.

Best mugshot ever

Texas Attorney General Ken Paxton might have crossed an ethical line after inciting members of the public to pressure The Texas Court of Criminal Appeals into issuing a ruling in his favor.

Micheal Shirk, a retired Austin lawyer caught wind of what Paxton was up to and filed a complaint with the State Bar of Texas.

Paxton’s action violated his duty as a lawyer, his oath to defend the Texas Constitution, and a state law that requires attorneys to practice law honestly, according to a grievance filed Friday by Shirk, as reported by Austin American-Statesman.

Paxton, the Texas attorney general since 2015, requested the Texas Court of Criminal Appeals to reverse the 8-1 ruling that struck down the law that ended his ability to unilaterally prosecute election law violations.

After being rejected, Paxton turned to media outlets to solicit his followers’ help.

[…]

In his grievance to the State Bar, Shirk made three allegations that would result in Paxton losing his Texas law license:

  1. The Texas Disciplinary Rules of Professional Conduct, the ethics code governing conduct for judges and lawyers place strict limits on the contact attorneys can have with judges outside of court.
  2. Paxton supported calling the Legislature back for a special session to pass an identical or stronger law than the one struck down by the court.

    This would let him investigate and process voter fraud for at least several years until the Court of Criminal Appeals would “strike it down again,” as reported by Austin American-Statesman.  

    “This undisputed advocacy for an unconstitutional law is a basis for the revocation of Mr. Paxton’s bar license,” Shirk wrote. “There is no greater abuse of public office than to encourage the subversion and suspension of constitutional protections, even if for only ‘several years.’”

  3. When Paxton accused the court of having made the ruling because of political motivations, it was considered “systematic and coordinated misconduct.”

    “These unsupportable, perfidious, and demeaning assertions are especially grave when issued by the highest law enforcement officer in Texas,” Shirk told the State Bar.

See here, here, and here for the background. To say the least, Paxton is used to this. I’m not sure I can fully count all of the complaints that have been lodged against him. Here’s one from 2014, based on the facts that later turned into the everlasting securities fraud charges he’s faced since 2015. There were two from 2016 that were dismissed, one also about the securities issue and one about Paxton advising county clerks that they didn’t have to offer marriage licenses to same-sex couples following the Obergefell decision. There are still two active complaints against him relating to the egregious lawsuit he filed seeking to overturn the 2020 election. I don’t know where they are in the pipeline, but as of September Greg Abbott and Dan Patrick were whining about them on his behalf. The dude attracts trouble like garbage attracts flies.

Do I think any of these complaints are likely to lead to actual consequences for Paxton? No, I don’t. At least, not as long as he’s Attorney General, they won’t. Maybe if he gets bounced in the election, that could happen. If the FBI frog marches him out of his office at some point, maybe. For now, while he’s in a position of power, the furor that would result from him even getting slapped on the wrist is too much. It’s nice to think that the rules do apply to him, but from where I sit I don’t see that happening. The Chron has more.

Abbott and Patrick whine about State Bar complaint against Paxton

Poor, poor babies.

Best mugshot ever

The state’s top officials came to the defense of embattled Attorney General Ken Paxton, saying a state bar investigation into his professional conduct is “politically motivated” and raises questions about the state’s separation of powers.

On Friday, Paxton said he had filed an objection to a state bar investigation prompted by his decision to file a lawsuit challenging the results of the 2020 presidential elections in four battleground states. The U.S. Supreme Court dismissed the lawsuit saying Texas did not have standing to file it.

Paxton called the state bar investigation “partisan” and said it was “weaponizing” its regulatory power against the attorney general’s office.

[…]

Gov. Greg Abbott and Lt. Gov. Dan Patrick, also blasted the investigation into the fellow Republican. Abbott, a former attorney general, said said the issue presented a “threatened intrusion upon executive branch authority.”

“These allegations raise separation-of-powers questions under our Constitution,” Abbott said in a statement. “I am confident that the Supreme Court of Texas, to which the State Bar of Texas is ultimately accountable, will ensure that the judicial branch upholds the law.”

Patrick said the investigation “appears politically motivated.”

“It is clear the Investigatory Panel, stacked with Biden and Democrat donors and activists, has weaponized its state-granted power, intended to protect a fair and just practice of law, to instead launch an attack over political differences,” he said in a statement. “These actions undermine the integrity of the Investigatory Panel and the State Bar of Texas as a whole.”

See here, here, and here for the background. Note that there are two complaints against Paxton, so it’s not clear to me which one is being whined about or responded to. I’m picturing Paxton standing behind Abbott and Patrick, like a little brother who’s gotten in over his head with the neighborhood kids. He’s picked a fight he doesn’t think he can win, so he tries to scare off his antagonists. It’s like an episode of The Little Rascals, if Spanky or Alfalfa had been caught trying to overthrow the government. We live in such dumb times.

A response to Paxton’s response

As you may recall, back in June we learned about a State Bar of Texas complaint against Ken Paxton for his ridiculous and seditious lawsuit that attempted to overturn the 2020 Presidential election. That complaint was filed by four people: Kevin Moran, retired journalist, President of the Galveston Island Democrats; David Chew, former Chief Justice of the 8th Court of Appeals; Brynne VanHettinga, a now inactive member of the Texas Bar; and Neil Cohen, a retired attorney. A second complaint was later filed by Lawyers Defending American Democracy, part of a group that included four former Presidents of the State Bar of Texas.

I’ve had some email correspondence with Neil Cohen, who was introduced to me via a mutual friend, since that first complaint came to light. He sent me the following analysis of Paxton’s responses to the complaints:

Ken Paxton’s recent [7/15] Response to four Grievances arising from his December lawsuit to overturn the election demonstrates that his claims of a stolen election and of illegal voting procedures were merely posturing to improve his political standing. The top law officer of Texas put our system of democracy in grave danger for his own political benefit.

The Grievances charged that his lawsuit is filled with falsehoods and absurd legal claims, thus violating attorney disciplinary rules. Paxton’s response failed to defend large sections of the lawsuit. As to his claims of massive voting improprieties, Paxton stated that he had hoped to develop the evidence during trial. (1) That, however, was his only evidence in support of his stolen election claims. Thus, Paxton’s tacit admission that he has no evidence to support his claims is strong proof that there is no evidence of a stolen election. The “Big Lie” is indeed a big lie. His admission is also in marked contrast to his repeated claims in the month between the filing of the lawsuit and the meeting of the electors on Jan 6 that the election was stolen and his urging Trump supporters to take action. Those claims culminated in Paxton’s appeal to a mob to “keep fighting” shortly before they invaded the Capitol Building.

As to legal claims, Paxton did not offer a defense of several essential claims (2), including the most important, that the proper remedy was overturning the election and disenfranchising millions of voters. On the issue of standing, where by a 7-0 vote [two justices ruled based on other issues] the Supreme Court had rejected Paxton’s arguments that Texas had the right to dictate to four other sovereign states how they conducted their election lawsuit, Paxton merely reiterated his arguments.

Instead of better defending his lawsuit, Paxton instead relies on two very weak procedural arguments. First, the Bar shouldn’t hear the Grievances because the filers weren’t his client. (3) The Disciplinary Rules, however, specifically provide that anyone with information about rule violations can file a grievance. (4) He also argues, without citing cases specific to attorney discipline, that the separation of powers doctrine prevents a court system from disciplining an attorney general for a court filing. (5) This is contrary to the cases I found. (6) Also, moving from the abstract level of his argument to the specific facts of this case, Paxton is arguing for the privilege to lie and to bring lawsuits that lack any reasonable basis. That privilege is non-existent. In fact, an attorney appearing before a court acts as an officer of the court and is therefore subject to discipline from the court (and from the relevant bar associations).

The weakness of Paxton’s Response demonstrates that the lawsuit violates attorney disciplinary rules and that his claims of a stolen election are nonsense. Because of the serious consequences of Paxton’s action, including an invasion of the Capitol Building, the Bar should impose its most serious punishment, disbarment. In addition, Paxton should be removed from office.

1 Response, pp. 12-13.
2 What he did defend — See Response, p. 8 (standing), p. 10 (electors clause), p. 11 (equal protection and due process).
3 Response, p. 13.
4 https://www.law.uh.edu/libraries/ethics/attydiscipline/howfile.html The second question (which is not numbered) states, "Any person who believes that a rule of professional conduct has been violated may file a complaint with the State Bar."  (emphasis added).
5 Response, p. 20
6 In re Lord, 255 Minn. 370 (Minn. 1959) • 97 N.W.2d 287; Massameno v. Statewide Grievance Committee, 234 Conn. 539 (Conn. 1995) • 663 A.2d 317.

I have a copy of the Paxton response here, and further notes from Cohen on the response are here.

As it happens, there was also a story in Salon about the complaint and Paxton’s limited and technicality-laden response to it:

Texas Attorney General Ken Paxton, an ardent Trump supporter who was the lead plaintiff in a last-ditch Supreme Court case aimed at overturning the 2020 election, appears to be backing away from his past claims of widespread election fraud. Facing discipline or even potential disbarment in Texas, Paxton now merely alleges that there were “irregularities” in battleground states, while still suggesting those could somehow have affected the overall result

Paxton’s apparent retreat came earlier this month in response to an array of grievances filed by several members of the Texas bar: retired lawyer Neil Cohen; Kevin Moran, president of the Galveston Island Democrats; former Texas Court of Appeals Chief Justice David Chew; and Dr. Brynne VanHettinga. In their initial complaint, the group argued that Paxton should face professional discipline over his bid to undermine the 2020 presidential election, saying that Paxton’s December petition to the U.S. Supreme Court, arguing that President Biden’s victory should be set aside, was both frivolous and unethical.

In Paxton’s response to their grievances, which was provided to Salon, the attorney general argued that “Texas’s filings were not frivolous” because “the 2020 election suffered from significant and unconstitutional irregularities in the Defendant States.” Paxton further claimed that, by this logic, he and his office “did not violate the disciplinary rules.”

Paxton’s response is a clear departure from his previous rhetoric, much of which explicitly supported former President Trump’s grandiose conspiracy theories about systemic election fraud. Earlier this month, Paxton told a Dallas crowd at the Conservative Political Action Conference that his “fight” for election security “is not done.”

“When people tell you there is no election fraud, let me just tell you my office right now has 511 counts in court because of COVID waiting to be heard,” Paxton continued. “We have another 386 that we’re investigating. If you add those together, that’s more election fraud than my office has prosecuted since it started investigating election fraud years and years ago.”

Paxton is notably less bombastic in his response to the Texas bar, but mentions the same “irregularities” that his original Texas suit claimed had tainted the elections in swing states such as Pennsylvania, Georgia, Michigan and Wisconsin. Effectively all of those supposed “irregularities” were changes in voting rules made in response to the COVID-19 crisis, which created significant challenges for both in-person and absentee voting.

[…]

In an evident attempt to ward off the threat of disbarment, Paxton’s response seeks to explain why the suit had any legal basis or “standing.” He argues, somewhat confusingly: “Texas’s assertion that it had standing in Texas v. Pennsylvania could not have been frivolous. There are no Supreme Court cases contrary to its position that it had standing.”

But Paxton indirectly admits, in Cohen’s view, that he had no real evidence of fraud, and apparently “hoped to develop the evidence during discovery.” In other words, his entire case could be interpreted as a fishing expedition, or just an attempt to rile up the Trump base with unsupported allegations. “That’s in contrast to his behavior for the month after filing the lawsuit,” Cohen said, “when he repeatedly claimed the election was stolen and urged people to take action.”

So now you know. I have no idea when the State Bar may issue a ruling, and as richly as Paxton deserves to be disbarred, I can’t see them doing much more than issuing some kind of reprimand. But at least that would be something. My thanks to Neil Cohen for the info and the guest post.

Another State Bar complaint against Paxton

He certainly deserves all the trouble this has brought him. Whether any of it leads to actual consequences, we’ll have to see.

Best mugshot ever

Four former presidents of the State Bar of Texas joined a group of high-profile lawyers on Wednesday to file an ethics complaint against Texas Attorney General Ken Paxton, a Republican, over his efforts to overturn President Joe Biden’s 2020 election victory against former President Donald Trump.

Paxton filed a widely criticized lawsuit with the Supreme Court in December, in which he sued the battleground states of Georgia, Michigan, Pennsylvania and Wisconsin over what he claimed were “unconstitutional irregularities” in their election processes. The Supreme Court rejected the lawsuit, which came as Trump and his allies repeatedly promoted baseless allegations that the 2020 presidential election was “rigged” or “stolen.”

The organization Lawyers Defending American Democracy, which asserts it is not partisan, filed the lawsuit in connection with 16 prominent Texas attorneys.

“The injunction Mr. Paxton sought with the Supreme Court would have usurped the presidency for the next four years and cast doubt on whether truly democratic presidential elections would ever have been restored in America,” Jim Harrington, one of the complaints signers and a retired founder of the Texas Civil Rights Project, said in a statement published on LDAD’s website.

Harrington said Paxton’s actions “demonstrated his disregard for the ethical rules which govern lawyers and for our country’s democratic principles.”

As you may recall, there’s already such a complaint against Paxton. I don’t know how the State Bar works, but I would assume these two would be combined. Reading that earlier post reminded me that Paxton was supposed to have responded to that complaint within 30 days, and indeed he has responded, asking for the complaint to be dropped – he’s basically saying that the original complainant doesn’t have standing to file against him. As a non-lawyer, I shrug my shoulders as I have no way to evaluate this claim on my own. Those of you who are lawyers, feel free to enlighten us.

Above the Law adds some details.

The bar complaint alleges that Paxton violated the Texas Disciplinary Rules of Professional Conduct by filing a frivolous suit, making false statements of fact and law to a tribunal, engaging in deceitful conduct, and failing to uphold the Constitution.

The complainants point to Paxton’s representation that Biden’s odds of winning the election were less than one in a quadrillion, a gross distortion of a economist Charles Cicchetti’s assertion that this was the probability of Biden winning if the votes before and after 3am were randomly drawn from the population as a whole. Cicchetti’s analysis was ridiculous on its face even before Paxton mangled it — the differential between in-person votes favoring Trump and absentee ballots favoring Biden had been widely predicted. And furthermore, smaller rural areas, which tend to lean Republican, were always going to complete their counting before cities like Philadelphia and Atlanta.

As for misstatements of law, the complainants point to Paxton’s bizarre theory of standing which “flew in the face of the Electors Clause and the bedrock constitutional principle of each State’s sovereignty within our federal system.”

“The standing to sue Mr. Paxton sought from the Supreme Court had no basis in law and would have been a prescription for an autocratic President to perpetuate his power indefinitely against the will of the voters,” said Gershon (Gary) Ratner, co-founder of Lawyers Defending American Democracy and principal author of the complaint.

Here’s the LDAD statement on their complaint, and here’s the complaint itself for your perusal. Note that they had called for Paxton to be sanctioned within a week of his filing that ridiculous lawsuit. I don’t know if it took them this long to prepare their complaint or if there was something else going on, but here we are. I don’t know enough to add anything else at this point, so stay tuned.

State Bar investigating Paxton

Well, well, well

Best mugshot ever

The Texas bar association is investigating whether state Attorney General Ken Paxton’s failed efforts to overturn the 2020 presidential election based on bogus claims of fraud amounted to professional misconduct.

The State Bar of Texas initially declined to take up a Democratic Party activist’s complaint that Paxton’s petitioning of the U.S. Supreme Court to block Joe Biden’s victory was frivolous and unethical. But a tribunal that oversees grievances against lawyers overturned that decision late last month and ordered the bar to look into the accusations against the Republican official.

The investigation is yet another liability for the embattled attorney general, who is facing a years-old criminal case, a separate, newer FBI investigation, and a Republican primary opponent who is seeking to make electoral hay of the various controversies. It also makes Paxton one of the highest profile lawyers to face professional blowback over their roles in Donald Trump’s effort to delegitimize his defeat.

[…]

Kevin Moran, the 71-year-old president of the Galveston Island Democrats, shared his complaint with The Associated Press along with letters from the State Bar of Texas and the Board of Disciplinary Appeals that confirm the investigation. He said Paxton’s efforts to dismiss other states’ election results was a wasteful embarrassment for which the attorney general should lose his law license.

“He wanted to disenfranchise the voters in four other states,” said Moran. “It’s just crazy.”

Texas’ top appeals lawyer, who would usually argue the state’s cases before the U.S. Supreme Court, notably did not join Paxton in bringing the election suit. The high court threw it out.

Paxton has less than a month to reply to Moran’s claim that the lawsuit to overturn the results in Georgia, Michigan, Pennsylvania and Wisconsin was misleading and brought in bad faith, according to a June 3 letter from the bar. All four of the battleground states voted for Biden in November.

From there, bar staff will take up the case in a proceeding that resembles the grand jury stage of a criminal investigation. Bar investigators are empowered to question witnesses, hold hearings and issue subpoenas to determine whether a lawyer likely committed misconduct. That finding then launches a disciplinary process that could ultimately result in disbarment, suspension or a lesser punishments. A lawyer also could be found to have done nothing wrong.

The bar dismisses thousands of grievances each year and the Board of Disciplinary Appeals, 12 independent lawyers appointed by the Texas Supreme Court, overwhelmingly uphold those decisions. Reversals like that of Moran’s complaint happened less than 7% of the time last year, according to the bar’s annual report.

See here, here, here, and here for the background on Paxton’s lawsuit, which you may recall was an effort by Texas and several other states to get SCOTUS to overturn the election result in four Biden-won states because the plaintiffs didn’t approve of their election laws. One reason why we can credibly claim that this lawsuit was not only without merit but that the lawyers who were filing it knew that it was without merit was that they would scream bloody murder if another state tried to meddle in their own jurisdictions. Following these (dangerous and seditious) legal shenanigans, one national group called for state bars to take action against the instigators. I don’t know if this filing was related to that, but it’s not hard to connect the dots.

Now whether anything comes of this, we don’t know. As the story notes, the odds against the complainants prevailing are slim. Still, it’s another front on which Paxton must battle to save his sorry ass, and I have no doubt that his response brief will provide some content of interest. I fervently hope that one witness who gets called is former Solicitor General Kyle Hawkins, who notably declined to argue Paxton’s filing before SCOTUS, which is what someone in his role would normally do. We deserve to know what he thought of all this. A ruling is likely months away, which may be just in time for the 2022 elections to be getting into full swing. Reform Austin has more.

Can Ken Paxton be sanctioned for his seditious lawsuit?

One group is going to try. I wish them luck.

Felons for autocracy!

A national lawyers group on Monday called for professional licensing bodies to investigate what it called a “breach of ethical rules” by Texas Attorney General Ken Paxton and 17 of his counterparts in red states who sued in the Supreme Court last week in a vain attempt to overturn President-elect Joe Biden’s win in four states in the Nov. 3 presidential election.

Lawyers Defending American Democracy, a nonpartisan group that says it has the support of 5,000 lawyers across the country, said in a statement that Paxton and his fellow Republican state attorneys general filed an “abusive lawsuit” that pushed groundless theories that erode confidence in vital institutions.

“The historically unprecedented attack on our democracy needs to be met by historically unprecedented state bar investigations,” said the group.

It called for the state bar of Texas, and its lawyer-licensing counterparts in other states, to investigate unprofessional conduct by not only the state attorneys general but any lawyers among the 126 GOP members of Congress who supported the suit.

“We call on state licensing authorities to promptly investigate the breach of ethical rules by these public officials and all lawyers participating in the filing of this Supreme Court petition,” the group said.

“They must not shrink from applying established ethical rules to discipline those officials.”

See here for the background, and here for the statement. I completely agree, and there were calls for sanctions a few weeks ago against Trump’s lawyers for their obviously dishonest filings. The case for bringing sanctions against Paxton as well is based on the American Bar Association’s Model Rules of Professional Conduct, which are adapted in some form in every state, which states that a lawyer shall not bring a suit “unless there is a basis in law and fact for doing so that is not frivolous.” But to even get to the State Bar of Texas with your complaint, first you need someone to file it, and then you have a difficult task getting them to agree with you.

“If history is any guide, it’s extremely unlikely that any of these lawyers are going to face disciplinary sanctions,” says Deborah Rhode, an ethics scholar at Stanford Law School and another co-author of Legal Ethics. “The bar is just, historically, extremely reluctant to take on anything that isn’t a clear, easily provable violation of disciplinary rules, and that has any kind of political overtones.” Moreover, she notes that bar disciplinary processes are underfunded and overworked. This issue came up in multiple conversations with experts: a lack of funding, expertise, and political will to investigate established or high-profile lawyers. “I think if you had a more robust disciplinary process with the likelihood that there would be professional consequences, that would be significant, that would be a deterrent,” she says. “But we’re a long way from that process.”

“This has been a persistent complaint that a lot of people in the legal ethics world have made about our discipline systems for years, which is that they don’t work that well,” says Luban. Most bar complaints do not lead to public sanctions, and that’s particularly true for the well-connected. It’s easier for underfunded committees to sanction solo practitioners, but they leave the big fish largely untouched.

Much as I’d like to see Ken Paxton suffer some professional consequences for his anti-American actions, the best we’re likely to get is to vote his sorry ass out of office. And to root for the various prosecutors and plaintiffs lining up against him. No one ever said life was fair.

More on the Woodfill raid

Yeah.

Former Harris County Republican Party Chairman Jared Woodfill is being investigated on theft and money laundering allegations, accused of misappropriating funds of at least two of his law firm’s clients, according to an affidavit by the Harris County District Attorney’s office.

Authorities on Monday seized 127 boxes of files, six computers and disk drives from the Houston high-rise office of the Woodfill Law Firm at Three Riverway, according to the returned search warrant filed in Harris County district court on Tuesday.

In his affidavit for the search warrant, which also targeted computer logins, passwords, memory devices, and telephones owned by Woodfill or the law firm, fraud examiner Bryan Vaclavik indicated authorities were seeking evidence used to commit felony offenses of misapplication of fiduciary property, theft and money laundering.

No charges have been filed against anyone in connection with the ongoing investigation. The Harris County District Attorney’s office declined comment on the investigation.

Investigators seized financial records, legal files, documents and correspondence on Monday related to two divorce cases handled by the firm, the search warrant documents show.

The ongoing investigation has nothing to do with Woodfill’s party activities, his attorney Jimmy Ardoin told the Houston Chronicle Tuesday.

Woodfill was chairman of the county Republican Party for 12 years, before losing the post in 2014.

Ardoin said his client had no advance notice of the search and had no details about the allegations beyond the content of the search warrant.

Ardoin said he had been in contact with the district attorney’s office about its review of finances in a divorce case for three to four months and was dismayed that Woodfill was not allowed to provide information voluntarily.

“We believe there’s an accusation of misappropriation of client funds,” Ardoin said. “We have yet to get confirmation of what it is.”

See here for the background. I’m going to try to not get ahead of the facts, and to wait patiently for things to happen in this case – remember, as the story says, no charges have been filed as yet against anyone. But as I think about who Jared Woodfill is, boy will it be tough to do that.

Police raid Jared Woodfill’s office

Oh, my.

Authorities on Monday raided the law office of former Harris County Republican Party chairman Jared Woodfill.

Investigators with the Harris County District Attorney’s office wheeled carts of documents from Woodfill’s office at 3 Riverway at least an hour after they arrived.

[…]

Woodfill is the subject of two separate formal complaints — one to the State Bar of Texas and the other to the Houston Police Department. In both complaints, Woodfill is accused of taking hundreds of thousands of dollars from clients’ trust accounts.

In the criminal complaint, filed in March 2017, Richard Rodriguez accused Woodfill’s firm of stealing more than $300,000 from a divorce trust account. Rodriguez said Monday he believed the search was related to his complaint.

Oh, my, my.

Documents show Woodfill was reprimanded by the state bar two months ago for failure to take reasonable action in another divorce case.

The state bar, which oversees lawyers, ordered him to take classes in billing, trust accounts or law practice management.

All of that on top of two other civil cases in which opponents recently demanded Woodfill pay hundreds of thousands of dollars in unpaid fees.

It’s too early to say what all this is about. We don’t even know for certain that Woodfill himself is the subject of any investigation. But, um, none of this looks great.

Look for the lawyers

They’ll be helping a lot of people who are going to need Harvey-related legal advice.

While rescue workers, including recreational boaters, pull frightened Houstonians out of flooded homes, lawyers are preparing the establishment of a network to give advice to people with legal issues stemming from the storm that’s dumped dozens of inches of water throughout the nation’s fourth-largest city.

“The goal is to get a bank of volunteers,” said Andrew VanSingel, director of the American Bar Association Young Lawyers Division Disaster Legal Services Program.

Teams of volunteer lawyers will hold clinics at shelters in Texas and throughout South Texas as soon as it is safe to do so, said Saundra Brown, manager of the Disaster Response Unit at Lone Star Legal Aid.

Lawyers will not be able to meet with clients at Lone Star’s main office in downtown Houston because the legal aid agency’s building caught on fire on Aug. 28 following an explosion. Brown said the explosion is still under investigation, but the agency has 14 offices, and others are open.

She said flood victims will want advice on dealing with insurance companies, the Federal Emergency Management Agency and the Small Business Administration. They will also need help dealing with other kinds of legal issues, such as tenant/landlord disputes arising when, for example, a landlord wants to evict a tenant because he needs an apartment for a relative who has been displaced by the floodwaters.

“The need is going to be huge,” said Brown, who had to flee her own house in Southwest Houston, which took on more than five feet of water.

According to information provided by VanSingel, FEMA had received 22,000 registrations as of the morning of Aug. 28 and projections anticipate the number will rise to as many as 400,000. VanSingel said there are more than 2.4 households in the disaster area, which spans 29,408 miles.

Brown said initial intake will go through a hotline operated by the State Bar of Texas, then income-qualified people will be referred to legal aid organizations, and others will be referred to other volunteer lawyer groups, such as the Houston Volunteer Lawyers in Houston. The legal aid organizations are Lone Star, Texas RioGrande Legal Aid and Legal Aid of NorthWest Texas.

The State Bar of Texas legal hotline is (800) 504-7030, and you can find more information about disaster relief legal aid here. You can apply for assistance from the Federal Emergency Management Agency here. Lone Star Legal Aid has already set up at the shelter at the George R. Brown shelter, and they will have more clinics around the state. If you know someone who has legal questions or needs legal assistance due to Harvey, refer them to the hotline, (800) 504-7030. They’ll get the help they need.

State Bar dismisses other complaint against Paxton

No matter what else happens, our ethically challenged Attorney General can say he beat at least one rap against him.

Best mugshot ever

Best mugshot ever

Attorney General Ken Paxton telling county clerks they do not have to issue marriage licenses to same-sex couples is not a sign of “professional misconduct,” according to the State Bar of Texas.

The organization last week dismissed a complaint filed against the embattled top prosecutor by more than 200 Texas attorneys, who argued that he “violated his own official oath of office” by issuing a written opinion stating that clerks and public officials could ignore the U.S. Supreme Court’s ruling legalizing same-sex marriage if it conflicts with their religious beliefs.

In an Aug. 3 notice obtained by The Texas Tribune, the State Bar said, “The Chief Disciplinary Counsel has determined that there is no just cause to believe that [Paxton] has committed professional misconduct.”

[…]

Steve Fischer, a former director of the State Bar of Texas and one of the attorneys who filed the complaint, said that while he didn’t get the result he wanted, there is “no further interest to continue the grievance.”

“We sort of made our point that he can’t tell clerks to disobey a Supreme Court’s ruling,” he said. “It’s the law of the land. He’s entitled to his own personal opinion, but he should draw a line.”

See here for the background. This may not have risen to the level of misconduct, but it was hardly exemplary conduct either, especially from the Attorney General. I don’t think a mild slap on the wrist of some kind would have been out of place, but whatever. Everyone who wants to get married in Texas can do so, and the matter hardly raises any eyebrow any more. Whatever happened with this complaint, Paxton lost the real fight, with barely a whimper. I’ll take that.

Meanwhile, in other Paxton-trouble news, the special prosecutors have filed their response to his petition to the Court of Criminal Appeals to have the felony charges against him dismissed.

Defense lawyers raised issues that cannot be appealed before trial or were correctly decided when the Dallas-based 5th Court of Appeals upheld criminal charges accusing Paxton of securities fraud and failing to register with state securities regulators, prosecutors told the Court of Criminal Appeals.

“The Court of Criminal Appeals grants less than 4 percent of all petitions for discretionary review filed by criminal defendants. Our reply makes it clear that Mr. Paxton’s petition is not one of them,” prosecutor Brian Wice said.

The prosecutors also argued that Paxton, who filed his appeal Aug. 1, waited too long to challenge the two felony fraud charges, requiring that portion of his appeal to be automatically dismissed.

You can see the state’s reply here. They rebutted each of the defense’s specific claims in addition to asserting that the defense filing was too late, but the legalese was too thick for me to make it all the way through without my eyes glazing over. Suffice it to say, the prosecution begged to differ.

And finally, Paxton is asking the SEC for more time in his fraud case on their docket.

Contemplating an aggressive round of depositions, Texas Attorney General Ken Paxton has asked for an additional 3½ months to question potential witnesses about allegations that Paxton defrauded investors in private business deals five years ago.

The additional time, if granted by U.S. District Judge Amos Mazzant III, would delay until at least September 2017 a civil trial on fraud allegations made by federal regulators.

In a recent court filing, Paxton’s lawyers told the judge they will need more time to question as many as 46 potential witnesses, including state Rep. Byron Cook, R-Corsicana, and his wife, Kay.

[…]

Another reason to grant a delay, lawyers told Mazzant, is that Paxton could face a criminal trial as early as spring 2017 on state felony fraud charges related to his actions on behalf of Servergy.

“Mr. Paxton respectfully submits that, as a matter of fairness, the trial of his criminal matter should occur prior to the trial of this matter,” his lawyers said.

Paxton’s lawyers also informed Mazzant that they are not interested in reaching an out-of-court settlement with the SEC. Neither side has requested or made a settlement offer, they added.

SEC lawyers told Mazzant they expect to finish their depositions — which would include questioning Paxton and his wife, Angela — by Feb. 6. Paxton’s lawyers pressed for a May 26 deadline on depositions.

See here and here for the background. Paxton has also filed a motion to dismiss the SEC charges against him, which still awaits the judge’s ruling. You have to admit, defending himself from a myriad of charges relating to his bad behavior is a full-time job, so Paxton has a compelling case for delay here. We’ll see if the judge grants it.

How you can help or get help in Houston

Via email from State Rep. Gene Wu:

I hope this email finds you safe after yesterday’s flooding. While we are seeing most of the high water receding from our neighborhoods, there is still a good deal of cleanup work to do today. Please stay safe as we anticipate even more rain throughout the day.

For those of you able to help your fellow Houstonians, you are always encouraged to donate to the Red Cross.

The Red Cross is also seeking volunteers who are available to commit 6-8 hours to assist at Houston-area shelters. There are different roles volunteers can play during a shelter operation:

  • provide immediate emergency services to individuals and families
  • greet families and provide comfort as they arrive.
  • provide meals, comfort kits, etc.
  • help oversee shelter operations.
  • entertain families.
  • assist in overnight security.

Other volunteer opportunities are available as well. To volunteer, contact the Red Cross at 713.313.5491.

Shelters in the Greater Houston area are located at:

Shelter                         Address
----------------------------------------------------
Chinese Community Center        9800 Town Park Drive
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Johnston Middle School          10410 Manhattan Dr.
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Willow Meadows Baptist Church   4300 W Bellfort Blvd
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MO Campbell Education Center    1865 Aldine Bender
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Jersey Village Baptist Church   16518 Jersey Drive (Jersey Village)
----------------------------------------------------
South County Community Ctr      2235 Lake Robbins Rd. (Spring)
----------------------------------------------------
Pine Island Baptist Church      36573 Brumlow Road (Hempstead)
----------------------------------------------------
Knights of Columbus Hall        1390 Highway 90 W (Sealy)
----------------------------------------------------
First United Methodist Church   4308 W. Davis Street (Conroe)
----------------------------------------------------
Royal High School               2550 Durkin Road (Pattison)
----------------------------------------------------
East Montgomery County          21679 McClesky (New Caney)
Community Center
----------------------------------------------------

As a reminder, here are some helpful links and phone numbers in case they are needed:

 

Thanks and stay safe!

From Sen. Rodney Ellis:

As our community continues to deal with flooding, please keep in mind these important tips to stay safe:
  1. Follow evacuation orders and do not attempt to return until officials say it is safe to do so.
  2. Head for higher ground and stay there.
  3. Stay away from floodwaters. If you come upon a flowing stream where water is above your ankles, stop, turn around and go another way.
  4. Turn around, don’t drown. If driving, turn around and go another way. If you are caught on a flooded road and waters are rising rapidly around you, get out of the car quickly and move to higher ground. Most cars can be swept away by less than two feet of moving water.
  5. Keep children out of the water.
  6. Be especially cautious at night when it’s harder to see flood danger.
Area services
These services will help you as you begin to recover from the flood’s impact.
  1. Report flooding: the City of Houston Office of Emergency Management is asking any residents who experienced flooding inside their home or business to report it to the Houston 311 Help & Information Line by calling 311 orsubmitting the report online here.
  2. Legal assistance: the State Bar of Texas offers a legal hotline to help connect people with legal aid providers following disasters: 1-800-504-7030. Additional resources are available at texasbar.com/disasters and texaslawhelp.org.
  3. Abandoned car: if your car was towed during the flood, call 713-308-8580 or visit findmytowedcar.com to determine where it is currently located.
  4. No power or downed power lines: please report a power outage or downed power lines to CenterPoint Energy at 713-207-2222.
  5. Food: if you need food or water, please contact the Houston Food Bank at 832-369-9390.
  6. Free storage: U-Haul is offering 30 days of free storage and U-Box container usage to flood victims. Call one of the Houston offices for more details: U-Haul of East Houston 281-377-3380; U-Haul of West Houston 281-495-6683; U-Haul of Gulf Coast Texas 713-750-7701; U-Haul Storage Centers of Houston 281-531-4022

And from CM Greg Travis:

1. Report Flooding to 311:
Please report all flooding to 311. As you have no doubt heard, the ReBuild Houston program is “worst first,” meaning the areas with the greatest flooding will receive reconstruction prior to areas with less severe flooding. Self-reported 311 information is the main data point going into the SWEET (Storm Water Enhanced Evaluation Technique), which aids in prioritizing drainage projects. It is vitally important that everyone who experienced structural flooding (flooding inside their home or business) report it to 311.
There are four ways to make reports to 311:
Phone: 713-837-0311 (or 3-1-1)
Smartphone: download the mobile app from the site above (or from the Apple App site or the Google Play site) and use it to report matters directly to the City of Houston
If you are reporting flooding online please select “Traffic, Streets, and Drainage,” then select “Report Flooding” from the “Maintenance & Repairs” menu. If you experienced flooding on a prior date you did not report (for instance, May 2015 or October 2015), you may also use this same process to report the prior flooding event.
If you have pictures of the flooding you wish to submit, you may report flooding by email and attach pictures, or once you have received the service request number for your report, you may email 311 the number with your pictures and ask to have the pictures attached to your flooding report.
2. Flood Recovery Information:
For flood recovery information, please visit http://www.houstonemergency.org/go/doc/2263/2620898
Currently, this site only has flood recovery information from May 2015 and October 2015, but the city is in the process of updating the information. This site will contain information about flood mitigation assistance, hazard mitigation grants, repairing flood damage if you live in a floodplain, making a flood insurance claim, and other important information to get you and your family back on your feet.
3. City of Houston Trash Pick-Up:
There was no City of Houston trash pick-up yesterday due to the floods. For information regarding the pick-up schedule for the rest of the week, please visit http://www.houstontx.gov/solidwaste/press-04182016.html
If you have questions about City of Houston trash pick-up, please contact one of the following Solid Waste Department representatives during normal business hours:
Irma Reyes
Tyra Wilkins
4. Information Regarding Late Filing of Your Federal Income Tax Return:
Yesterday was the deadline to file your federal income tax return. If you were not able to file due to flooding, and you did not timely request an extension, you will find information to assist you here: https://www.irs.gov/uac/Newsroom/Houston-Area-Taxpayers-Affected-by-Severe-Weather-May-Qualify-for-Relief-from-Penalties-on-Late-Tax-Returns
5. Find your Towed Vehicle:
If you were forced to abandon your vehicle on a public roadway and it was towed, you will find information regarding the location of your towed vehicle here: http://findmytowedcar.com/tvrmscitizen/mainpage.aspx
6. Utility Outages:
CenterPoint Energy crews have been working since the storm began Sunday night to restore service to affected customers. Overall, an estimated 170,000 customers have been impacted with a peak of approximately 120,000. The most heavily impacted areas are Cypress, Greenspoint, Humble and Spring Branch. As of 2:30 p.m. yesterday, approximately 45,000 customers remain without power. CenterPoint will be bringing an additional 30 crews from neighboring utilities and their contractors to assist in the most heavily impacted areas.

CenterPoint crews are having difficulty making it through floodwaters, which is slowing power restoration efforts. Customers should be prepared for extended outages, particularly in some of the harder-hit areas. Estimates of when power will be restored will also be delayed.

Safety is CenterPoint Energy’s No. 1 priority, and the company has provided these important electric and natural gas safety tips:
Electric:
  • Stay away from downed power lines. Be especially mindful of downed lines that could be hidden in floodwaters, and treat all downed lines as if they are energized.
  •  If you experience flooding and water has risen above the electrical outlets in your home, contact a licensed electrician before turning on the main circuit breaker or trying to restore power.
  •  All electrical appliances and electronic equipment that have been submerged in water need to dry thoroughly for at least one week. Then, have them checked by a qualified repair person before turning them on. Attempting to repair a flood-damaged appliance could result in electrical shock or death. Attempting to restart it could result in further damage and costly repairs.
  •  If the outside unit of an air conditioning system has been under water, mud and water may have accumulated in the controls. Have the unit checked by a qualified air conditioning technician.
  Natural Gas:
  • Do not turn off your natural gas service at the meter; doing so could allow water to enter the natural gas lines.
  •  Be alert for the smell of natural gas. If you smell gas, leave the area immediately and tell others to leave, too.
  •  If you smell gas, do not turn the lights on or off, smoke, strike a match, use a cell phone or operate anything that might cause a spark, including a flashlight or a generator.
  • Do not attempt to turn natural gas valves on or off. Once safely away from the area, call 888-876-5786, and CenterPoint Energy will send a trained service technician.
  • If your home was flooded, call a licensed plumber or gas appliance technician to inspect your appliances and gas piping to make sure they are in good operating condition before calling CenterPoint Energy to reconnect service. This includes outdoor gas appliances including pool heaters, gas grills and gas lights.
  • Before conducting debris cleanup, or to locate underground natural gas lines and other underground utility lines before digging on property, call 811 – the nationwide Call Before You Dig number.
  • Be aware of where your natural gas meter is located. As debris is put out for heavy trash pickup, make sure it is placed away from the meter. In many areas the meter may be near the curb. If debris is near a gas meter, the mechanized equipment used by trash collectors could pull up the meter, damaging it and causing a potentially hazardous situation. If this happens, leave the area immediately and call CenterPoint Energy at 888-876-5786.
 For the latest information on power outages:
The District G office will provide additional information as it becomes available.  Above all, please stay safe.

See here and here for more from the Red Cross. There’s a reason why I don’t unsubscribe to the zillions of email lists I manage to get onto. Times of crisis are always good times to give blood as well – go to the Gulf Coast Regional Blood Center to arrange for a donation. Remember that the general rule is that it’s better to give money to a charitable organization than stuff unless they are specifically asking for stuff. Don’t buy canned goods and bring them to the food bank. They can get those canned good more cheaply than you, so give them the money you would have spent.

HISD schools were closed yesterday but at last report were to be open today, while city and county offices reopened and Metro resumed service yesterday. Some other school districts remain closed. There’s still rain in the forecast through tomorrow though nothing like Monday, so there’s still a risk of flooding. Hopefully that won’t happen, but be prepared and stay off the roads as much as possible.

One State Bar complaint against Paxton dismissed

A little bit of good news for our embattled AG, but not much.

The State Bar of Texas has dismissed one of two pending complaints against Attorney General Ken Paxton.

The dismissed complaint, filed in February by attorney and blogger Ty Clevenger, requested that the bar investigate and penalize Paxton for his failure to register as a financial adviser while steering business to a friend’s investment firm.

[…]

In a letter explaining the move, Assistant Disciplinary Counsel Rita Uribe said the bar dismissed the complaint because “it is the subject of a pending criminal complaint.” If Paxton is convicted, she added, he will be “subject to compulsory discipline.”

Here’s Clevenger explaining why that is unsatisfactory to him.

Best mugshot ever

Best mugshot ever

As I explained in my February 11, 2016 blog post, my grievance against Mr. Paxton had far less to do with Mr. Paxton than the state bar itself.  Time and again, I’ve watched the state bar protect politically-connected attorneys, some of whom have committed serious crimes. And now the practice continues.

According to a March 9, 2016 letter from OCDC, my grievance was dismissed because the allegations are “the subject of a pending criminal case against [Mr. Paxton].”  But as I noted in the appeal that I filed this morning, nothing in the disciplinary rules prevents OCDC from prosecuting attorney misconduct charges concurrently with criminal charges.

On the contrary, “[t]he processing of a Grievance, Complaint, Disciplinary Proceeding, or Disciplinary Action is not, except for good cause, to be delayed or abated because of substantial similarity to the material allegations in pending civil or criminal litigation.” Texas Rule of Disciplinary Procedure 15.02. Granted, a delay or abatement differs from an outright dismissal, but the spirit of the rule certainly implies that OCDC should not dismiss a case simply because a related criminal case is pending. In fact, the OCDC prosecuted my grievance against former Robertson County District Attorney John Paschall concurrently with the overlapping criminal charge.

Under normal circumstances, however, the OCDC will not prosecute a politically-prominent attorney. In this case, the OCDC dismissed a grievance filed by Erica Gammill against Mr. Paxton in 2014 because that grievance supposedly failed to state a disciplinary violation (even though Mr. Paxton had already admitted his guilt in writing and under oath).  After Mr. Paxton got indicted for the very same allegation, I re-filed Ms. Gammill’s grievance along with a copy of the indictment.

And now the OCDC refuses to investigate because a criminal case is pending, which makes this a classic Catch 22.  If you file a grievance against a politician lawyer before he gets indicted, the state bar will dismiss the grievance — no matter how damning the evidence — on the grounds that you failed to state a violation. But if you file the grievance after he gets indicted, then the state bar will dismiss your grievance because a criminal case is pending.  Is it any wonder that my profession has such a miserable reputation?

There are good reasons for prosecuting the cases concurrently. First, the burden of proof differs between a disciplinary charge and a criminal charge. If the special prosecutors fail to prove Mr. Paxton’s guilt beyond a reasonable doubt, the OCDC might nonetheless prove him culpable on the preponderance of the evidence. Second, the four-year limitations period for a disciplinary charge will expire this summer, i.e., before Mr. Paxton’s criminal case goes to trial.  Maybe the Board of Disciplinary Appeals will do the right thing and reverse the OCDC, but the board sided with the OCDC the first time it buried this case.

I’d be very curious to hear what the attorneys who read my blog think about this. In the meantime, there is another complaint pending against Paxton, having to do with his bogus “advice” to County Clerks on how to evade the Supreme Court ruling on same-sex marriage. That one isn’t tied to an indictment, and the Board of Disciplinary Appeals reinstated it after an initial dismissal. So maybe one way or another the State Bar will have to take action.

Sebesta remains disbarred

Good.

Anthony Graves

The disciplinary board of the Texas State Bar on Monday affirmed the agency’s decision to disbar Charles Sebesta, the former prosecutor who oversaw the wrongful death sentence of Anthony Graves.

Graves, who spent 18 years in prison, including 12 on death row, for a fiery multiple murder he did not commit, filed a complaint against Sebesta in January 2014. He asked the Bar to hold Sebesta accountable for withholding critical evidence of his innocence.

“The bar stepped in to say that’s not the way our criminal justice system should work,” Graves said. “This is a good day for justice.”

[…]

In their ruling on the Sebesta’s disbarrment Monday, the disciplinary board called his conduct in the Graves case “egregious.”

The board’s decision on Sebesta’s appeal is final.

See here for the background. At the time of the appeal, Sebesta’s attorney said the board’s decision would be final, which I take to mean he won’t try to find some other avenue to keep fighting this, like a lawsuit or something. I hope that’s the case, and I hope this will finally force the man to come to terms with his actions, and to try to make amends while he still can. I don’t expect that he will, but I hope that he will. If not, he will forever serve as a bad example.

Paxton finds another way to be in trouble

Like fleas to a dog, trouble just follows this guy around.

Best mugshot ever

Best mugshot ever

Remember that historic Supreme Court ruling last year? The one that ended decades of discrimination against same-sex couples who wanted to get married?

Texas Attorney General Ken Paxton surely does because it’s probably still causing him headaches, in addition to his legal woes. The Lone Star State’s top lawman is accused of securities fraud.

We just learned that on January 29, the Board of Disciplinary Appeals, appointed by Texas’ Supreme Court, decided not to dismiss a grievance against Paxton filed with the State Bar Chief Disciplinary Counsel for an alleged violation of the Texas Disciplinary Rule of Professional Conduct, which means the Texas State Bar has been ordered to continue a disciplinary investigation into the alleged violation.

That whole defying the Supreme Court thing is good for television spots, but, not so good in reality.

You can see a copy of the complaint embedded in the story. Amazing, right? I looked in my archives and found that somehow, this had fallen entirely below my radar – I have no posts that mention this, as far as I can tell. So off to Google we go, and our first stop to get up to speed is this Trib story from July 3.

Roughly 150 Texas attorneys have signed on to a letter threatening to file a complaint with the State Bar of Texas against Attorney General Ken Paxton for his response to the U.S. Supreme Court’s ruling on same-sex marriage.

“It seems to us that your edict to encourage Texas clerks to violate a direct ruling of the United States Supreme Court violates” the State Bar’s rules requiring attorneys to uphold the U.S. Constitution, the letter states.

After the Supreme Court legalized gay marriage nationwide, Paxton issued an opinion telling Texas clerks they did not have to issue marriage licenses to same-sex couples if it violated their religious beliefs — though he suggested that they could face litigation.

On Friday, Paxton spokeswoman Cynthia Meyer said the attorney general’s legal opinion was “a nonbinding interpretation of the law,” one that “emphasizes the importance of protecting religious liberty while enforcing the Supreme Court’s expanded definition of marriage.”

If Paxton doesn’t change his direction to county clerks in the coming weeks, Steve Fischer, a former director of the State Bar of Texas, said he plans to file a complaint he anticipates hundreds of other lawyers will sign onto.

“I think he could very easily be disbarred,” said Fischer, who wrote the letter sent to Paxton’s office Friday. “He violated his oath to specifically uphold the United States Constitution.”

Note the reference at the end of this story to a complaint that had already been filed by then by former State Rep. Glen Maxey. This Courthouse News story covers that.

Glen Maxey, a member of the Texas Democratic Party executive committee and the state’s first openly gay legislator, filed a grievance with the State Bar of Texas on June 30.

It came two days after Paxton issued a nonbinding advisory opinion urging county officials not to issue the licenses if they have personal religious objections, but warned that if they did so they would probably be sued.

Paxton’s letter came after the Supreme Court’s landmark ruling in Obergefell v. Hodges on June 26 that struck down several states’ same-sex marriage bans.

Maxey said it is “irresponsible” for an elected official and attorney to tell other elected officials to break the law.

“He’s misleading county and state officials based on a false premise that they can discriminate against same-sex couples,” Maxey said in a July 3 statement. “This past Friday, the Supreme Court was clear with their decision to let same-sex couples marry. Paxton took an oath to defend and protect the Constitution. He must comply with the court’s decision.”

You can find a copy of Maxey’s complaint here. The grievance for which all those attorneys’ signatures were collected, which is the one referenced in the first link above, was eventually filed later in July. (The Trib, my usual source for this kind of political esoterica, oddly had the story about the complaint being filed in their subscription-only Texas Weekly section.) Why the wait? Steve Fischer, the former State Bar director, explains his reasoning.

Maxey, however, is not a lawyer and didn’t allow Paxton the 25-day implementation period, as provided by U.S. Supreme Court Rule 45 and in the 5th Circuit Court of Appeals mandate, which specified a July 17 compliance deadline.

Attempting to steer clear of politics, Fort Worth lawyer Brian Bouffard and I sent a warning to the attorney general that he must comply with the law. We posted on Facebook that we would collect attorney signatures, but quit after receiving about 300 in two days. If a grievance becomes necessary, we will have many more.

We allege the Texas attorney general has violated several of the State Bar Disciplinary Rules, most of which are found in Section 8.04 a (4) obstruction of justice, and 8.04 (a) 12 that he has violated his attorney oath to uphold the law of the United States. As the state’s top legal officer, he can’t be offering county clerks any legal ammunition to circumvent the law when it’s clear, to most legal analysts, they would be “shooting blanks.”

The State Bar of Texas, the licensing authority for all Texas lawyers, is 100 percent nonpartisan. When a complaint is filed it goes to State Bar disciplinary counsel and if they find grounds, Paxton would be required to file an answer. If his answer is insufficient, he would be given the choice of appearing before a grievance panel of a few lawyers and perhaps one nonlawyer or having his case heard in district court.

The penalties range from a reprimand to license suspension, and in the most egregious cases, disbarment. Usually, these cases are private and confidential; however, the bar has made an exception for public interest cases.

Many believe the State Bar does not go after its own, and it is accurate to say most complaints against lawyers are dismissed. The reason, however, is that the vast majority of filings are rancorous, rambling rants that do not allege a specific violation.

We hoped Paxton would take a deep breath and proclaim that although the Supreme Court decision violated his personal and religious beliefs, he would follow the law.

We know how that turned out. Which brings us back to today. Towleroad has an excerpt from the Board of Disciplinary Appeals’ ruling.

On January 29, 2016, the Board of Disciplinary Appeals appointed by the Supreme Court of Texas considered the appeal from the dismissal from the above grievance by the Office of the Chief Disciplinary counsel of the State Bar of Texas. After reviewing the grievance as filed with the sState Bar Chief Disciplinary Counsel’s office and no other information, the Board grants the appeal, finding that the grievance alleges a possible violation of Texas Disciplinary Rule of Professional Conduct 1.02(c).

The Board of Disciplinary Appeals will now return the case to the Office of the Chief Disciplinary Counsel for investigation and a determination whether there is just cause to believe that the attorney has committed professional misconduct. The Office of the Chief Disciplinary Counsel will notify both parties of each step of the process, including asking the attorney to respond to the complaint. For information concerning the handling of the case from this point forward, please contact the Austin Office of Chief Disciplinary Counsel.

And here’s the Trib story, and the Chron story, which recap everything we’ve discussed here in a much more concise fashion. The one bit of information mentioned in the Trib piece that I haven’t covered here is that the complaint was initially dismissed by the Chief Disciplinary Counsel’s office; it was the appeal to the Board of Disciplinary Appeals that brought us to this point. I can hardly wait to see what comes next. Trail Blazers and Daily Kos have more.

Sebesta appeals disbarment

This saga that I thought was over still has another chapter in it.

Anthony Graves

Lawyers for Charles Sebesta, the ex-prosecutor who secured the wrongful death sentence of Anthony Graves, told a panel of the State Bar of Texas on Friday that he should not be disbarred based on technicalities in the rules that govern lawyer discipline.

[…]

Jane Webre, who was defending Sebesta before the disciplinary board, argued that bar rules prevent the board from making a different ruling on Graves’ recent complaint after it already determined the former prosecutor wasn’t subject to disbarment for his role in that conviction.

“In order for the system to function properly, it’s important that the bar apply the rules fairly and consistently,” Webre told the Texas State Bar Board of Disciplinary Appeals.

Sebesta argued that the bar dismissed the previous complaint not only because of the time bar but also because they found no merit in the accusations against him.

Cynthia Hamilton, senior appellate lawyer for the commission for lawyer discipline at the State Bar, told the panel that Sebesta’s disbarment should remain in effect. In dismissing the previous claim, she said, the Bar did not address the merits of the claims of misconduct, only the statute of limitations, which lawmakers have since extended.

“It was Mr. Sebesta’s own flawed analysis of the definition of just cause that led him to that conclusion,” Hamilton said.

Additionally, she said, if the disciplinary rules were applied as Sebesta contends they should be, lawyers would not face discipline in instances where additional evidence of serious wrongdoing came to light after an initial complaint was dismissed. That would give lawyers – who are not required to cooperate with bar investigators – an incentive to conceal information, she said.

Further, she argued, lawmakers changed the statute of limitations governing prosecutor discipline in 2013 specifically to allow the kind of sanction Sebesta is facing.

“The Legislature gave the [chief disciplinary counsel] its marching orders,” Hamilton said.

See here for the background. I love how guys like Sebesta always reach for the technicalities when the spotlight turns to their own behavior. I’m sure he was ever so solicitous of those finer points of law when he was DA. Be that as it may, he is entitled to a review, and if his argument is deemed valid, then so be it. I personally think Ms. Hamilton has by far the stronger case, and I hope the State Bar sees it that way as well. I agree completely with what Anthony Graves says:

Graves said he said he is confident the panel will uphold Sebesta’s disbarment. And their decision, he said, will have consequences for prosecutors statewide.

“If they uphold the ruling, it says we’re not going to allow prosecutors to just do what they want in the courtroom and not be held accountable,” Graves said. “If they reinstate him, it says to the public that we really don’t care about you, we just protect our own.”

Amen. I don’t know when the State Bar will rule on this, but I hope they get it right.

Paxton takes the culture-warrior lead

Well, at least he’s found his calling in life.

Ken Paxton

In the six months before Ken Paxton won election as Texas attorney general last fall, he stayed largely out of sight. Under an ethical cloud amid claims of financial fraud, he avoided public events and rarely spoke to reporters, coasting to victory as part of new Republican leadership including Gov. Greg Abbott and Lt. Gov. Dan Patrick.

Lacking Patrick’s knack for political theater, and yet to display the lawyerly intellect of Abbott, his predecessor as the state’s top attorney, the 52-year-old former legislator struggled to emerge from their shadows during his first several months in office.

But now, even as his personal legal troubles resurface, Paxton is poised to claim his place in the sun as the state’s top culture warrior.

Two days after the U.S. Supreme Court struck down Texas’ long-standing same-sex marriage ban, Paxton issued an opinion telling county clerks with religious objections that pro bono lawyers were standing by to help defend them against legal challenges if they denied licenses to same-sex couples.

“Our religious liberties find protection in state and federal constitutions and statutes,” he said. “While they are indisputably our first freedom, we should not let them be our last.”

The missive launched him into the national consciousness, earning comparisons to George Wallace, the former Alabama governor who fought desperately to preserve racial segregation in the 1960s. Blasting Paxton for encouraging state officials to violate the law, a Democratic lawmaker has since asked the U.S. Justice Department to monitor the implementation of the Supreme Court’s decision.

The nonbinding opinion amounted to more of a statement of moral support than legal defiance. But to social conservatives — some beginning to feel abandoned by a governor who has declined their requests to call a special legislative session to address the issue of same-sex marriage — it bolstered the McKinney Republican’s standing as one of the last guardians of religious liberty.

“Texas often tries to bill itself as the most conservative state in the union, which isn’t very often the case actually. We have a reputation that we don’t live up to. But I think that Ken Paxton is living up to it,” said Julie McCarty, president of the NE Tarrant Tea Party, which wields considerable influence in Republican primaries. “I haven’t heard anything from our governor, which is not surprising, but again disappointing.”

Even Patrick, who came to power with the backing of the conservative movement, has not avoided the perception that he failed to do enough as the Senate’s presiding officer to protect traditional marriage this session.

“There’s a lot of other things that should have been passed, that the rest of the Republican leadership caved into the homosexual demands — that would be Abbott and Patrick and [Speaker] Straus,” said Steve Hotze, a Houston doctor who operates the powerful Conservative Republicans of Texas political action committee.

Paxton’s office was “very instrumental” in pushing lawmakers to pass legislation affirming religious officials’ rights to refuse to perform same-sex marriages known as the Pastor Protection Act, said Hotze, whose group distributes mailers and scorecards to a vast network of GOP voters.

“Most people don’t understand, but Ken Paxton does understand the direction of this movement, and he is speaking out,” he said. “Abbott has been AWOL on the issue.”

[…]

Based on the questions about Paxton’s ethical compass, former Railroad Commissioner Barry Smitherman, the candidate who came in third in the primary, later endorsed Paxton opponent Dan Branch in the runoff.

But concerns about Paxton’s business matters did not dissuade conservatives in 2014, and don’t seem to have gained traction among them recently.

McCarty said Thursday she was not aware that Paxton could face a felony charge, but said it did not affect her support for him.

“This is how politics goes. People are always pressing charges and making frivolous suits just to smear someone’s name,” she said. “The general public doesn’t follow it closely enough to know when everything’s been cleared and that it was all trumped up for nothing. Until we have a conclusion, I would definitely side with Paxton and give him the benefit of the doubt because I just know that’s how these games are played.”

So this is where we stand. And just to add a little gasoline to the fire, there’s this:

As if Attorney General Ken Paxton didn’t have enough troubles with a potential felony indictment, now he’ll be fighting off an ethics complaint over his opinion on same-sex marriage.

[…]

Now long-time Travis County Democratic mainstay Glen Maxey has savaged that opinion as nothing more than political cant, and filed a complaint with the Texas State Bar Association against Paxton. In it, the Texas Democratic Party county affairs director alleges multiple violations by Paxton of the Texas Disciplinary Rules of Professional Conduct, including that Paxton made a false statement of law that is “flatly inconsistent with the United States Constitution”, as well as violating the statutes defining his official duties, the oath of office as attorney general, and the terms of his license to practice law in the state of Texas.

In a statement Maxey, who was Texas’ first openly gay state representative, writes, ““It’s irresponsible for an elected official – and a lawyer – to tell other elected officials to break the law. He’s misleading county and state officials based on a false premise that they can discriminate against same-sex couples.”

You can see a copy of the complaint here. It’s not the first time someone has complained to the State Bar about Paxton. I’m not a lawyer and will pass on evaluating the merits of Maxey’s complaint. If that’s in your wheelhouse, by all means please chime in.

As for the larger issue with Paxton, all this raises the stakes on the grand jury/special prosecutor investigation against him. He can complain all he wants about being made a target, but he’s not being tried in Travis County and may have a hard time making that charge sound believable to anyone outside of Ms. McCarty’s circle. If he gets no-billed or manages to beat the charges one way or another, he’ll be in a very strong position politically. If he goes down, there could be collateral damage. At some point, Abbott and Patrick and the rest are going to have to decide if they want to stand by Ken Paxton or let him sink or swim on his own. I imagine there have been a few very off the record back-room discussions about how to play things if it all goes to hell for the state Republican brand. Trail Blazers and the Trib have more.

Sebesta disbarred

A fitting end to this story.

Anthony Graves

The former prosecutor who won a wrongful conviction of Anthony Graves for capital murder, sending him to Texas death row where he was nearly executed twice, has been disbarred.

In a ruling released Thursday, the State Bar of Texas found that Charles Sebesta committed “professional misconduct” as Burleson County District Attorney when he prosecuted Graves in 1994 for a family’s murder. Graves’ co-defendant, Robert Carter, who was executed in 2000, admitted he was the lone killer.

The bar complaint against Sebesta was filed by Graves, who was freed in 2010 after serving 18 years in prison, 16 of them on death row. Graves said his complaint was “nothing personal,” but an attempt to correct the criminal justice system.

“That ruling is more for the system than it is about me,” Graves told The Texas Tribune. “It’s about holding everyone responsible, and this is all part of it.”

The bar’s disciplinary panel found several prosecutorial mistakes by Sebesta. Even though Carter denied Graves’ involvement when he testified before a grand jury, Sebesta did not correct Carter’s false testimony against Graves at Graves’ trial.

Also during the trial, Sebesta told the court that an alibi witness about to testify on Graves’ behalf was a suspect in the same murders. She was not. But after the courtroom statement by Sebesta was made, the witness, Graves’ girlfriend at the time, Yolanda Mathis, refused to testify.

“Sebesta had no evidence or information tending to show Yolanda Mathis was suspect or had any involvement in the murders,” the bar’s disciplinary panel found.

See here and here for the background, and here for a copy of the ruling. This action is entirely appropriate, and I only wish it could have happened sooner. Prosecutors who lie, cheat, and flout the rules of justice need to be held accountable for their actions. Anthony Graves is right, it’s not about him, it’s about making justice more fair for everyone. We’re a little bit closer to that now. The Chron has more.

UPDATE: Here’s Pamela Coloff‘s take.

State Bar accuses Willingham prosecutor of misconduct

Wow.

In a major turn in one of the country’s most-noted death penalty cases, the State Bar of Texas has filed a formal accusation of misconduct against the county prosecutor who convicted Cameron Todd Willingham, a Texas man executed in 2004 for the arson murder of his three young daughters.

Following a preliminary inquiry that began last summer, the bar this month filed a disciplinary petition in Navarro County District Court accusing the former prosecutor, John H. Jackson, of obstruction of justice, making false statements and concealing evidence favorable to Willingham’s defense.

“Before, during, and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel,” the bar investigators charged.

The bar action was filed Mar. 5 without any public announcement. It accuses Jackson of having intervened repeatedly to help a jailhouse informant, Johnny E. Webb, in return for his testimony that Willingham confessed the murders to him while they were both jailed in Corsicana, the Navarro county seat.

Webb has since recanted that testimony. In a series of recent interviews, he told the Marshall Project that Jackson coerced him to lie, threatening a long prison term for a robbery Webb was accused of committing but promising to reduce his sentence if he testified against Willingham.

Jackson has repeatedly denied that he made any pre-trial agreement with Webb in exchange for his testimony. The former prosecutor acknowledged that he and others made extraordinary efforts to help Webb, but said they were motivated only by concern for a witness who had been threatened by other prisoners because of his testimony.

A lawyer for Jackson, Joseph E. Byrne, on Wednesday urged that people withhold judgment about the case until all the evidence was presented and took issue with the grievance filed against his client by the Innocence Project, a legal advocacy group.

“I disagree with much of the information that was put together by the Innocence Project and do not find it to be objective,” Byrne said.

[…]

Told of the state bar’s action, Willingham’s stepmother, Eugenia, said, “John Jackson committed a crime, and I want him punished. If the appeals court had known the truth, Todd would probably be alive today.”

A staff attorney for the Innocence Project, Bryce Benjet, said the group was encouraged by the bar’s disciplinary action. “Withholding exculpatory evidence and the presentation of false testimony in a death penalty case is quite possibly the most serious ethical breach for a lawyer you can imagine,” he said.

The disciplinary petition contends that “Jackson failed to make timely disclosure to the defense details for favorable treatment for Webb, an inmate, in exchange for Webb’s testimony at trial for the state.”

“During a pre-trial hearing on July 24, 1992, (Jackson) told the trial court that he had no evidence favorable to Willingham,” the complaint continues. “That statement was false.”

The Marshall Project disclosed earlier this month the existence of a letter sent by Webb to Jackson in 1996 asking Jackson to comply with what he called their “agreement” to reduce his judgment from aggravated robbery to robbery. Within a few weeks, Jackson obtained a court order that reduced the charge.

The grievance that led to this charge was filed last year after the evidence from Webb about his testimony being coerced first came to light. The Trib had a story last week that reviewed all this and that indicated that the charges against Jackson were coming. Go read that to get up to speed if you need to. As I said when this grievance was filed, we have started to see some rogue prosecutors be held accountable for their illegal actions. It would be a small but fitting piece of justice if John Jackson were to be held accountable for his. The Chron has more.