In the Matter of Lock

• Decision Date: 21 June 2001
• Docket Number: No. 99-0976,99-0976
• Citation: 54 S.W.3d 305
• Parties: (Tex. 2001) In the matter of Paula Ann Lock
• Court: Texas Supreme Court

Page 305

54 S.W.3d 305 (Tex. 2001)

In the matter of Paula Ann Lock

No. 99-0976

SUPREME COURT OF TEXAS

Argued on January 17, 2001

Decided June 21, 2001.

On Appeal From the Board of Disciplinary Appeals

Justice Hankinson delivered the opinion of the Court, in which Chief Justice Phillips, Justice Enoch, Justice Baker, Justice O'Neill, and Justice Jefferson joined.

Deborah G. Hankinson, Justice

The issue in this appeal from a judgment of the Board of Disciplinary Appeals (BODA) concerns the appropriate disciplinary procedure to be followed when a licensed Texas attorney is convicted of or placed on probation with or without an adjudication of guilt for possession of a controlled substance. We must decide whether discipline in this instance is mandatory under the compulsory discipline process, or whether BODA may consider a range of sanctions based on the facts underlying the alleged misconduct as part of the standard grievance process.

Paula Ann Lock, a licensed Texas attorney, pleaded guilty to possession of a controlled substance, a third-degree felony, in violation of Texas Health & Safety Code § 481.115(c). The trial court deferred further proceedings without an adjudication of guilt, ordered her to pay a $500.00 fine, and placed her on community supervision for six years. Through the Chief Disciplinary Counsel, the State Bar of Texas commenced compulsory discipline proceedings against Lock pursuant to Part VIII of the Texas Rules of Disciplinary Procedure. See Tex. R. Disciplinary P. 8.01-.08, reprinted in Tex. Gov't Code, tit. 2, subtit. G app. A-1. After a hearing, BODA held that Lock, having been placed on probation for possession of a controlled substance without an adjudication of guilt, had been convicted of an intentional crime, as defined by disciplinary rule 1.06(O). BODA suspended Lock for the term of her criminal probation and held that if her criminal probation is revoked, she should be disbarred pursuant to Texas Rule of Disciplinary Procedure 8.06. Lock appealed to this Court, arguing that she is not subject to compulsory discipline because possession of a controlled substance is not a crime of moral turpitude, and therefore, on the facts of her case, she was not convicted of an intentional crime. We agree that under Texas' disciplinary scheme, Lock is not subject to compulsory discipline, but that her actions may be reviewed and sanctioned following the standard grievance procedures. We therefore reverse BODA's judgment and remand the case to BODA for further proceedings consistent with this opinion.

As the question before us is which of the two available disciplinary procedures is the appropriate way to review Lock's conduct, we begin with an overview of the disciplinary system. The Texas Rules of Disciplinary Procedure provide two procedures by which a licensed attorney may be disciplined: compulsory discipline, delineated in Part VIII, or the standard grievance procedures outlined in Parts II and III. See In re Birdwell, 20 S.W.3d 685, 687 (Tex. 2000). Compulsory discipline is reserved for when an attorney has been convicted of or received deferred adjudication for an "intentional crime," as that term is defined in the rules; in all other instances of alleged attorney misconduct, discipline is determined in the standard grievance process. See generally Tex. R. Disciplinary P. Part II, Part III, Part VIII.

The salient distinction between the two procedures for purposes of this appeal is that the compulsory discipline process admits no discretion. Compulsory discipline for an intentional crime turns solely on the record of conviction, the criminal sentence imposed, and the factual determinations that the attorney is licensed to practice law in Texas and is the party adjudged guilty. See Tex. R. Disciplinary P. 8.04, 8.05, 8.06. An attorney guilty of an intentional crime must be either suspended or disbarred - depending solely on whether the attorney's criminal sentence was probated - without regard for any collateral matters, and without any consideration or inquiry into the facts of the underlying criminal case. See Tex. R. Disciplinary P. 8.05, 8.06.

The standard grievance process, unlike the compulsory process, affords some discretion. In the standard grievance process the attorney has the opportunity to present the facts underlying the alleged misconduct. The reviewing body that hears the evidence and imposes sanctions - whether an investigatory or evidentiary panel or district court - may also consider any mitigating circumstances in determining the appropriate degree of discipline. See Tex. R. Disciplinary P. 2.13, 2.17, 3.09, 3.10. In the standard grievance process, the rules permit the reviewing body to disbar the offending attorney, but also make available a range of lesser sanctions, including various types of suspension and reprimand. See Tex. R. Disciplinary P. 1.06(T).

Apparently concluding that the elements of Lock's crime satisfied the rules' definition of an intentional crime, the Office of Chief Disciplinary Counsel invoked the compulsory discipline process against Lock. Thereafter, BODA suspended Lock for the term of her probation. Whether compulsory discipline was the appropriate disciplinary procedure depends on the nature of Lock's offense, specifically, whether possession of a controlled substance is an intentional crime. See Tex. R. Disciplinary P. 8.01. To hold that possession of a controlled substance is an "intentional crime," by definition BODA had to conclude that it is a "[s]erious [c]rime that requires proof of knowledge or intent as an essential element." Tex. R. Disciplinary P. 1.06(O). Further, BODA concluded as a matter of law that Lock's crime qualified as a "serious crime" as that term is defined by rule 1.06(U). Under the disciplinary rules, "serious crime" means:

barratry; any felony involving moral turpitude; any misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation of another to commit any of the foregoing crimes.

Tex. R. Disciplinary P. 1.06(U). Possession of a controlled substance is neither barratry nor a misdemeanor involving theft, embezzlement, or misappropriation of money or other property; BODA thus implicitly concluded that it is a felony involving moral turpitude. Therefore, to determine whether the Bar properly invoked the complusory-discipline procedure against Lock, we must review its core conclusion that her crime was one of moral turpitude.

The conclusion that a particular crime involves moral turpitude is one of law. See In re Thacker, 881 S.W.2d 307, 309 (Tex. 1994); State Bar of Tex. v. Heard, 603 S.W.2d 829, 835 (Tex. 1980). We review BODA's legal conclusions de novo. Birdwell, 20 S.W.3d at 687. We have also established that to determine whether a crime is an intentional crime, thus permitting the Bar to pursue the compulsory discipline process, we look solely to the elements of the crime, and not to any collateral matters, such as an attorney's record of service and achievement, or to the underlying facts of the criminal case. Duncan v. Board of Disciplinary Appeals, 898 S.W.2d 759, 762 (Tex. 1995) (attorney convicted of misprision of felony not subject to compulsory discipline because BODA could not determine if the attorney committed an intentional crime without looking to the underlying facts); In re Humphreys, 880 S.W.2d 402, 406-07 (Tex. 1994) (attorney convicted of tax evasion subject to compulsory discipline because tax evasion is an intentional crime involving "deliberate greed and dishonesty and has a specific connection to a lawyer's fitness to practice").

In the context of attorney discipline, we have consistently held that crimes of moral turpitude must involve dishonesty, fraud, deceit, misrepresentation, or deliberate violence, or must reflect adversely on an attorney's honesty, trustworthiness, or fitness as an attorney. See Birdwell, 20 S.W.3d at 688; Duncan, 898 S.W.2d at 761; Humphreys, 880 S.W.2d at 408. Therefore, under the analysis we established in Humphreys and Duncan, we look solely to the elements of Lock's crime to determine if those elements involve any of the kinds of acts or characteristics encompassed within our definition of moral turpitude. The elements of the applicable criminal statute are that the defendant knowingly or intentionally possessed a controlled substance listed in Texas Health & Safety Code § 481.102. See Tex. Health & Safety Code § 481.115(a). Because the elements of this crime do not involve dishonesty, fraud, deceit, misrepresentation, deliberate violence, or reflect adversely on an attorney's honesty or trustworthiness, to fall under our definition of moral turpitude, simple possession of a controlled substance, without the intent to distribute or sell, must reflect adversely on a lawyer's fitness generally.

As we explained in Humphreys, quoting from the comment to rule 8.4 ("Misconduct") of the American Bar Association's Model Rules of Professional Conduct, not all crimes implicate fitness to practice law: "Many kinds of illegal conduct reflect adversely on fitness to practice law . . . . However, some kinds of offense carry no such implication. . . . Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice." 880 S.W.2d at 407. The corresponding comments to Texas Disciplinary Rule of Professional Conduct 8.04 make the same distinction between personal and professional responsibility:

4. Many kinds of illegal conduct reflect adversely on fitness to practice law. However, some kinds of offenses carry no such implication. Traditionally in this state, the distinction has been drawn in terms of "serious crimes" and other offenses. . . . These Rules continue that distinction by making only those criminal offenses...