Weiss v. Commission for Lawyer Discipline

• Decision Date: 20 May 1998
• Docket Number: No. 04-96-00549-CV,04-96-00549-CV
• Parties: Joe W. WEISS, Appellant, v. COMMISSION FOR LAWYER DISCIPLINE, Appellee.
• Court: Texas Court of Appeals

Page 8

981 S.W.2d 8

Joe W. WEISS, Appellant, v. COMMISSION FOR LAWYER DISCIPLINE, Appellee.

No. 04-96-00549-CV.

Court of Appeals of Texas San Antonio.

May 20, 1998.

Rehearing Overruled July 31, 1998.

Curtis L. Cukjati, Cacheaux, Cavazos, Newton, Martin & Cukjati, LLP, San Antonio, for Appellant.

Robert G. Newman, Fulbright & Jaworski, L.L.P., San Antonio, Steven W. Young, General Counsel, Linda Acevedo, Assistant General Counsel, Austin, for Appellee.

Before STONE, DUNCAN and JOHN G. HILL, ¹ JJ.

OPINION

JOHN G. HILL, Justice.

Joe W. Weiss appeals from a judgment disbarring him from the practice of law in the State of Texas. He presents twenty-nine points of error.

We reform the judgment to delete the trial court's finding that Weiss, in knowingly failing to surrender papers to which his former clients, the Del Castillos, were entitled, to their prejudice, violated Texas Disciplinary Rule of Professional Conduct 1.15(d) and to delete the sanction imposed in connection with this finding. We affirm the judgment as reformed for the reasons set forth in this opinion.

In 1993 Weiss's law firm was representing Roberto Del Castillo and his son with respect to personal injuries they had sustained in an automobile accident and was representing Roberto's wife Carmen for injuries that she had suffered in a separate accident. Upon becoming dissatisfied and angry with Weiss over the representation, Del Castillo filed a grievance against Weiss. Following the filing of Del Castillo's complaint, an investigatory panel of the grievance committee held two hearings in connection with its investigation of the allegations of misconduct. The investigatory panel apparently made some finding of "Just Cause." Weiss declined the panel's offer of resignation in lieu of disbarment and elected to have his disciplinary matter tried "de novo" in district court.

The original petition filed in district court by the Commission for Lawyer Discipline made several allegations concerning Weiss's dealings with Del Castillo and also included an allegation regarding statements that Weiss had made during the Grievance Committee's investigatory hearings. Additional allegations concerning misrepresentations by Weiss were made by the Commission for Lawyer Discipline through the filing of its First Amended Disciplinary Petition, filed in October, 1995.

In January 1996, Weiss filed his Motion To Strike/Plea in Abatement. In that motion, Weiss contended that with respect to charges of knowingly making false statements of material fact and a charge that he had used the threat of criminal prosecution to gain advantage in a civil matter, they had never been the subject of any hearing before the local grievance committee and he had never received a finding of just cause with regard to such a charge by any investigatory panel of the local grievance committee. The trial court denied his plea. The jury trial was held a few days after the filing of the motion, but well after the filing of the amended petition.

Weiss contends in points of error numbers one through five that the trial court abused its discretion by denying his Motion and Amended Motion to Strike/Plea in Abatement because the amended claims were never the subject of a separate complaint or inquiry of which he had proper notice, and that the trial court erred in: (1) denying his Motion and Amended Motion to Strike/Plea in Abatement, Motion for Judgment N.O.V. and Motion for New Trial because the judgment violates the Due Process Clause of the United States Constitution, Amendment V (as applicable to Texas through Amendment XIV, sec. 1) and the Texas Constitution; (2) allowing evidence of, and sanctioning him for, conduct not originally set forth in Del Castillo's complaint because that action deprived him of his rights under the Texas Rules of Disciplinary Procedure and the Due Process and Equal Protection clauses of the United States Constitution and the Texas Constitution; (3) denying his Motion for Judgment N.O.V. and Motion For New Trial because his failure to receive a fair hearing before an impartial and unbiased tribunal denied him his due process right to a fair trial; and (4) allowing witnesses, testimony, and other evidence from the disciplinary proceeding at trial because that violated his statutory right to a trial de novo.

Disciplinary proceedings for attorneys are governed by the Texas Rules of Disciplinary Procedure as adopted by the Texas Supreme Court. Under these rules, the State of Texas is geographically divided into disciplinary districts. TEX.R. DISCIPLINARY P. 2.01 (1992), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G, app. A-1 (Vernon Supp.1998) (see p. 345 of the 1998 supplement to Vol. 3 of the Government Code). These districts may be divided into subdistricts. Id. The Rules provide for district grievance committees to serve in the districts or subdistricts. Id.

If the Office of the Chief Disciplinary Counsel receives what it determines is a Complaint, the Respondent is provided a copy of it and given notice to respond, in writing, to the district grievance committee within thirty days after receipt of the notice. TEX.R. DISCIPLINARY P. 2.09 (1994). No more than thirty days after receiving the Respondent's written response to the complaint, the chair of the district grievance committee is to promptly convene an investigatory panel to determine whether there is "Just Cause."

Id. at 2.11.

"Just Cause" means such cause as is found to exist upon a reasonable inquiry that would induce a reasonably intelligent and prudent person to believe that an attorney either has committed an act or acts of Professional Misconduct requiring that a Sanction be imposed, or suffers from a Disability that requires either suspension as an attorney licensed to practice law in the State of Texas or probation.

Id. at 1.06(P).

Once the investigatory panel finds "Just Cause" and is unable to negotiate a sanction with the Respondent, it so notifies the Complainant and the Respondent. Id. at 2.13. The notice includes a statement that further proceedings are to be conducted before an evidentiary panel of a district grievance committee. Id. At that point the Respondent may elect to have the complaint heard in a district court of proper venue, with or without a jury, instead of by an evidentiary panel of the district grievance committee. Id. at 2.14. In this case, Weiss elected to have the complaint heard in district court before a jury.

"Complaint" is defined by the Rules as "those written matters received by the Office of the Chief Disciplinary Counsel that, either on the face thereof or upon screening or preliminary investigation, allege Professional Misconduct or attorney Disability, or both, cognizable under these rules or the Texas Disciplinary Rules of Professional Conduct." Id. at 1.06(F).

The petition in district court is to be brought by the Commission for Lawyer Discipline, a committee of the State Bar of Texas. See id. at 3.01(A). The petition is to include, among other things, "[a] description of the acts and conduct that gave rise to the alleged Professional Misconduct in detail sufficient to give fair notice to Respondent of the claims made, which factual allegations may be grouped in one or more counts." Id. at 3.01(D).

As previously noted, the Rules provide that it "is the Complaint" that is heard in the trial at district court. See id. at 2.14. We also take note of the fact that the Rules define "Complaint" to include not only that which appears on the face of the written matters received by the Office of Chief Disciplinary Counsel, but also that which arises upon screening or preliminary investigation of the written matters received. Id. at 1.06(F). We conclude that the allegations in the petition of the Commission for Lawyer Discipline may include both allegations that are a part of the original complaint as well as those that appear during the preliminary investigation of those matters. We note that one Court of Appeals has held that in such a suit the Commission for Lawyer Discipline may bring as many claims in the district court proceeding as it might have against the attorney. See Diaz v. Commission for Lawyer Discipline, 953 S.W.2d 435, 437 (Tex.App.--Austin 1997, no writ). We believe, however, that the allegations that the Commission may bring in district court are limited in the manner as described here. In any event, all of the complaints brought by the Commission for Lawyer Discipline in this case were either part of the original complaint or appeared during the preliminary investigation of that complaint.

Weiss complains that before an allegation may appear in the Commission's petition in district court, the district grievance committee's investigatory panel must first make a determination of just cause with respect to that allegation, after the attorney has received a hearing with respect to that allegation. Weiss's due process rights were not affected by any failure to hold such a hearing because the proceedings before the grievance committee have no finality. See Minnick v. State Bar of Texas, 790 S.W.2d 87, 90 (Tex.App.--Austin 1990, writ denied). Even if a finding of just cause were necessary as Weiss contends, in this case, although Weiss complains there was no such finding by the investigatory panel, he gives us no record reference in support of his statement. We are of the opinion that the panel's findings are not included in the record before us for review. Consequently, Weiss has failed to preserve error as to any contention that the investigatory panel did not make a just cause finding with respect to any allegation in the Commission's petition in district court.

Conversely, Weiss urges that it would violate his due process rights to allow the grievance committee before which he appeared to be the grievance committee to make a "just cause" determination as to whether he lied to the committee. We have found no record that Weiss made...