Disciplinary proceeding against attorney.
Sending proposed lawsuit letters with offers to not sue if recipient paid $2,000.
Commission for Lawyer Discipline v. Rosales, 03-18-00147-CV, (Tex. App. – Austin April 3, 2019, no pet. h.)
The Texas anti-SLAPP, TCPA, Law Applies to Lawyer Discipline
Rosales, an attorney, sent letters to several healthcare facilities claiming that their websites did not meet the requirements of the Americans With Disabilities Act. He also attached a proposed lawsuit that he said he was going to file against them unless they paid him $2,000. He signed the letters “O. Rosales Attorney at Law ceo.cenvetaccess.org”. Several of the providers filed grievances against Rosales with the Office of the Chief Disciplinary Council of the State Bar of Texas. Eventually, the State Bar filed suit against Rosales in the Travis County District Court. Rosales filed a motion to dismiss under the Texas anti-SLAPP, TCPA, law. The State Bar responded that the TCPA did not apply to lawyer disciplinary proceedings and even if it did, they met their burden to show by clear and specific evidence a prima facie case for each essential element of the claim. The trial court granted the motion and dismissed the claim by the State Bar. The State Bar appealed.
The Texas Anti-SLAPP law or TCPA has a three step process. In step one, the movant bears the burden of establishing by a preponderance of the evidence that the nonmovant’s claim is a legal action in response to the movant’s exercise of his right of association, his exercise of his right of free speech or his exercise of his right to petition. §27.003 (a).
The State Bar first argued that the TCPA did not apply because it exempts from its applicability “an enforcement action that is brought in the name of the state or a political subdivision of the state by the attorney general, a district attorney, a criminal district attorney, or a county attorney.” The appeals court noted that the Chief Disciplinary Counsel was neither the attorney general, a district attorney, a criminal district attorney, or a county attorney. According to the court, the exemption did not apply to the chief disciplinary Council.
The Chief Disciplinary Counsel’s Office next argued that they were immune from the TCPA under Tex. Civ. Prac. & Rem. Code § 27.011(a), and to Rule 17.09 of the Texas Rules of Disciplinary Procedure. The court ruled that the Chief Disciplinary Counsel’s Office was not immune from the application of the TCPA since the immunity that they relied on was for individuals and applies only to government employees.
Once the movant has shown that the nonmovant’s legal action is covered by the act, the burden shifts to the nonmovant to demonstrate a prima facie case for each essential element of a cause of action by “clear and specific evidence.” §27.005 (c).
The elements of a professional misconduct claim are:
- the respondent is an attorney licensed to practice law in the state of Texas, who
- engaged in acts and conduct that violates the Texas Disciplinary Rules of Professional Conduct.
Given the existence of the letter in the record, with its related demonstrable facts, and the Commission’s detailed pleadings regarding the basis of its claims, we hold that the Commission carried its burden under the TCPA to establish by clear and specific evidence a prima facie case that Rosales engaged in professional misconduct by violating the Texas Disciplinary Rules of Professional Conduct.
If the nonmovant meets his burden of establishing a prima facie case for each essential element of a cause of action by “clear and specific evidence”, the court must still grant the motion to dismiss if the movant establishes a valid defense by a “preponderance of evidence”. §27.005 (d).
Rosales did not establish by a preponderance of the evidence that his demand letter does not violate rule 8.04(a)(3)’s prohibition against “engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation.” According to the Commission’s pleadings, Rosales’s letter violated this rule by (1) stating categorically that the ADA applies to websites and that the ADA requires compliance with the WCAG guidelines when in actuality there is, at best, a split in authority as to whether or how the ADA applies to websites; (2) referring to the WCAG guidelines as rules that the recipient’s website has failed to comply with when in actuality the WCAG are guidelines established in the private sector, not rules promulgated under the ADA; and (3) suggesting that the WCAG guidelines constitute a policing agency for the ADA and ADA compliance when in actuality the WCAG guidelines are a set of suggested guidelines maintained by a non-governmental entity. The Commission also pleaded that Rosales’s use of the trade name “Center for Veterans Access” in a letter is deceptive in violation of this rule because it suggests some relationship to the U.S. Department of Veterans Affairs.
Conclusion and Disposition
The Texas anti-SLAPP, TCPA, Law Applies to Lawyer Discipline
So, the TCPA applies to lawyer discipline cases. But before everybody goes off into a “sky is falling” rampage, the essential elements of the cause of action for lawyer discipline is very easy for the State Bar to meet. Unless there is no basis for the State Bar’s claim for discipline, in which case it should be dismissed anyway, the State Bar will easily meet its burden under step two of the Texas anti-SLAPP, TCPA, law.
The dissent stated:
The Texas Citizens Participation Act (“TCPA”), a statute with the express purpose of protecting the right to petition, speak freely, associate freely, and otherwise participate in government has become a barrier to disciplining lawyers for violating the Disciplinary Rules of Professional Conduct (“Disciplinary Rules”).
It is not a barrier to disciplining lawyers. Do you have to do it the right way? Of course you do, just like in any other suit. If Rosales had filed a no evidence motion for summary judgment and the State Bar did no respond, would the suit be dismissed? Could we say that summary judgment has become a barrier to disciplining lawyers?
New things are scary but like we would tell our client, Mr. Craddock, just do what you’re supposed to do under the law and everything will be alright.