Opinion
No. 44292
Opinion and Judgment Signed January 28, 2011, Delivered January 30, 2011.
On Appeal from the Evidentiary Panel for the State Bar of Texas, District 01A-2 (Dallas) Grievance Committee, Nos. D01008355970, D0080732685, D0110733526, Opinion and Order on Motion for Rehearing, Considered En Banc October 18, 2010.
Appellant, Heather Schaefer, Plano, Texas, pro se.
For Appellee, Commission for Lawyer Discipline of the State Bar of Texas, Linda A. Acevedo, Chief Disciplinary Counsel; Cynthia W. Hamilton, Senior Appellate Counsel, Office of the Chief Disciplinary Counsel, State Bar of Texas, Austin, Texas.
OPINION AND ORDER:
Attorney Heather Schaefer appealed a judgment disbarring her signed March 3, 2009 by an Evidentiary Panel for the Slate Bar of Texas District 01A-2 Grievance Committee (Collin County, Texas). The dispositive issue on appeal was whether an evidentiary hearing panel that failed to meet the minimum statutory requirement that all grievance committee panels consist of two-thirds attorneys and one-third public members, TEX. R. DISCIPLINARY P. 2.02, 2.07, 2.17, had authority to convene a hearing and render judgment. This is a question of first impression and distinct from the prior decisions involving the quorum of a properly constituted Evidentiary Panel. The Supreme Court of Texas has stated that the statutory composition requirement for Evidentiary Panels is inflexible. In re Allison, 288 S.W.3d 413, 417 (Tex. 2009).
"Evidentiary Panel" means a panel of the District Grievance Committee performing an adjudicatory function other than that of a Summary Disposition Panel with regard to a Disciplinary Proceeding pending before the District Grievance Committee of which the Evidentiary Panel is a subcommittee. TEX. R. DISCIPLINARY PROCEDURE 1.06O, reprinted in Tex. Gov't Code, tit. 2, subtit. G, app. A-1 (Vernon 2005) ("TRDP"). All references to disciplinary rules in this opinion are to these rules, unless otherwise indicated.
In re Allison, 288 S.W.3d 413 (Tex. 2009) (holding that a three-attorney and one-public member quorum of a six-person Evidentiary Panel was a proper quorum under TEX. GOV'T CODE § 81.072(j) and TRDP 2.07); Cafiero v. Comm'n for Lawyer Discipline, BODA Case No. 37811 (May 10, 2007) (holding that a four-attorney and one-public member quorum of a six-member Evidentiary Panel did not satisfy the requirements of TEX. GOV'T CODE § 81.072(j) and TRDP 2.07).
On July 30, 2010, this Board ("BODA") held that the Supreme Court of Texas and the Legislature intended that the mandatory composition requirement for an Evidentiary Panel is jurisdictional; that is, a panel without two-thirds attorney members and one-third public members lacks authority to convene a hearing. Because the record in this case disclosed on its face that the Schaefer panel lacked the statutorily required members (having only four attorneys and one public member), BODA held that the judgment of disbarment was void, vacated the judgment, and remanded the case for a new hearing before a lawfully constituted panel. The Commission for Lawyer Discipline of the State Bar of Texas filed a motion for rehearing asking BODA to reconsider its holding that the panel lacked authority to render judgment and urging that the mandatory composition requirement was not jurisdictional and that Schaefer had waived any error for the failure of the Chief Disciplinary Counsel and the pane] to comply with the TRDP.
We held and today reaffirm that the unambiguous statutory rules for formation and composition of the Evidentiary Panel are not only mandatory but also fundamental to the jurisdiction and integrity of the disciplinary adjudicatory process. The primary purpose of these rules is protection of the public. Further, and importantly, the Office of the Chief Disciplinary Counsel acts as staff for the grievance committee panel in limited circumstances such as those now before us and must scrupulously adhere to the rules when requesting appointments and substitute appointments for Evidentiary Panels. Therefore, we deny the motion for rehearing.
I. PROCEDURAL HISTORY
A. Evidentiary Panel Appointments
Tins disciplinary action against attorney Schaefer began as three separate complaints filed in 2007. After reviewing each complaint, the Office of the Chief Disciplinary Counsel ("CDC") of the State Bar of Texas found just cause to believe that Schaefer had committed professional misconduct. The CDC served Schaefer with three separate notices of a finding of just cause and of her right to elect to have each case heard either in district court or by an Evidentiary Panel of the district grievance committee in the county of her place of practice, TRDP 2.14D, 2.15.
Schaefer did not affirmatively elect to have the cases heard in district court, and the Chair of the District 01A Grievance Committee, Brian K. Gary, signed separate orders appointing a six-person Evidentiary Panel to hear each case. TRDP 2.17. Gary, also the chair of the 01A-2 panel, appointed the District 01A-2 panel for all three cases. When Gary signed the original orders the other panel members were Bryan Burg (attorney member), Richard Glaser (attorney member), John Hunter Smith (attorney member), Charley J. Ellis, Jr. (public member), and Brenda Hayward (public member). On June 6, 2008, the CDC served Schaefer with a copy of each order with the Second Amended Evidentiary Petition (which consolidated the three cases for trial).
According to the record, the District 01A Grievance Committee had three standing six-member panels at the time.
On July 1, 2008, Gary signed a new order appointing the District 01A-2 panel appointed for 2008-2009 to hear the cases. The new panel consisted of five of the same members as the original panel with a new public member, Karen Henning, replacing Brenda Hayward. The CDC sent Schaefer a copy of the order which she received on August 1, The record contains no further appointment orders or notices to Schaefer.
B. Evidentiary Hearing
The CDC personally served Schaefer with hearing notice on February 2, 2009 that the case was set to be heard by the Evidentiary Panel on February 20, 2009. Schaefer asked for an "emergency continuance" the day before the hearing, stating that she was required to travel out of town on "job-related business" and could not attend. The Commission objected to the continuance, and the panel denied Schaefer's request. Richard Glaser, panel chair, signed the order denying the continuance.
The record also contains hearing notices sent to Schaefer by certified mail, return receipt requested, at two different addresses in December 2008 and January 2009 which were returned unclaimed.
The hearing went forward on February 20, 2010 without Schaefer present. According to the Hearing Report, however, the panel that convened the hearing was different from the last appointed panel. The top portion of the Schaefer Hearing Report was printed as part of the form and was apparently completed before the hearing. The Hearing Report reflects that the Schaefer Evidentiary Panel consisted of only five members: Richard Glaser, Bryan Berg, John Hunter Smith, Thomas Scott Smith, and Charley J. Ellis, Jr. Printed in the blank for the sixth member's name is "Vacant." The rest of the report, including which members attended, was completed and signed by hand, apparently by the panel chair.
A Hearing Report details the persons attending the hearing, the findings of misconduct, if any, and the discipline imposed when the panel finds professional misconduct has occurred.
The Hearing Report also indicates that four panel members, three attorneys and one public member, were actually present to hear the case: Richard Glaser (attorney member), Bryan Burg (attorney member), Thomas Scott Smith (attorney member), and Charley J. Ellis, Jr. (public member). The record contains no order appointing Thomas Scott Smith to the 01A-2 panel or to any panel assigned to hear the Schaefer cases.
We do not reach the issue of whether Thomas Scott Smith was properly appointed.
At the conclusion of the evidence, the Commission asked the panel to actively suspend Schaefer's license to practice law for three years, order her to pay restitution totaling $2,800 to two clients, and order her to pay attorney's fees and expenses to the State Bar. After brief deliberation, the panel announced that it had unanimously voted to disbar Schaefer. After announcing the decision, the panel chair asked for the Assistant Disciplinary Counsel's assistance in completing the Hearing Report, which he referred to as "your [the CDC's] report." C. Appeal and Rehearing
Schaefer argued three procedural errors on appeal. She pointed out that the Hearing Report showed a panel position "Vacant" which she argued had been created in order to change the size of the panel and obtain a quorum in violation of TEX. GOV'T CODE § 81.072(m). She also argued that the three attorneys and one public member present did not satisfy the statutory requirement that a quorum "must include one public member for each two attorney members." TEX. GOV'T CODE § 81.0720); TRDP 2.07. The Supreme Court conclusively resolved this point against Schaefer, In re Allison, 208 S.W.3d 413 (Tex. 2009), and, therefore, this argument is without merit. Finally, Schaefer argued that, because the record discloses that a substitute panel member was appointed at sometime between the July 2008 appointment and the hearing, the substitution violated TEX. GOV'T CODE § 81.072(n) which prohibits substitutions on the day of the hearing for which the panel was assigned without the complainant and respondent's approval. Although the record does not contain any notice to Schaefer of appointments made after July 2008, the record does not indicate that the substitution was made the day of the hearing. Because we held that the vacancy deprived the panel of authority to render judgment, we did not reach Schaefer's other two arguments.
TEX. GOV'T CODE § 81.072(m) provides: "A panel of a district grievance committee of the state bar may not be changed in size for the purpose of obtaining a quorum on the panel without the approval of the complainant and the respondent in the grievance matter to which the panel was assigned."
The Commission argues on rehearing that BODA should grant its motion and withdraw its judgment vacating the evidentiary panel's judgment of disbarment because (1) judgments rendered by a court in violation of a mandatory statutory or constitutional requirement have been held to be voidable, not void; and (2) there is no clear indication that the Supreme Court and Legislature intended the two-thirds attorneys/one-third public members panel composition requirement be jurisdictional. The Commission also urges that it did not have an opportunity to address the issue whether failure to have two-thirds attorneys and one-third public members on the panel was jurisdictional before BODA vacated the judgment.
Schaefer urges BODA not to grant the Commission's motion for rehearing because: (1) the Commission has cited no binding authority which requires a reversal; (2) the Commission had opportunity for oral argument in the case but withdrew its request for argument; and (3) the Commission should have raised the arguments in its motion for rehearing in its brief during the appeal on the merits.
II. FUNDAMENTAL ERROR
We first address the Commission's complaint that BODA improperly raised the issue of an unlawfully constituted panel sua sponte thereby depriving the Commission of the opportunity to respond or have argument before vacating the judgment. The Commission originally requested oral argument in this case but withdrew its request a month after BODA notified the parties that the appeal was set for argument on July 23, 2010. The Commission devoted several pages of its original brief to the issue whether the "Vacant" notation on the Hearing Report was a jurisdictional defect that Schaefer could raise for the first time on appeal. Although Schaefer argued in her brief that the vacancy violated a different statutory requirement than the one BODA held had been violated, the Commission was aware that Schaefer had raised an issue concerning the Jack of a panel member, had opportunity to address, and did address whether a vacancy on the panel was fundamental error in its original brief. The Commission cites no new authority on the issue in its motion for rehearing not discussed in its brief. Accordingly, we find that the proceedings did not deprive the Commission of an opportunity to be heard on this issue.
While we appreciate the fact that holdings concluding that a court lacked capacity to act are rare, an Evidentiary Panel without the required two-thirds attorney members and one-third public members lacks authority to convene a hearing because any judgment rendered by a court without capacity to act is void. Mapco v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (judgment rendered by disqualified trial judge is void). Additionally, we recognize that true "fundamental error," error that can be raised for the first time on appeal, exists in limited circumstances, as important policy considerations protecting judgments should require parties to preserve error. In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). Fundamental error occurs when the record shows that the court (1) lacked subject matter jurisdiction, (2) lacked jurisdiction over the parties, (3) lacked jurisdiction to enter the judgment, or (4) had no capacity to act as a court. Mapco, 795 S.W.2d at 703. The Texas Supreme Court also recognizes fundamental error where "the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas." Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982).
We find that the question whether an unlawfully constituted Evidentiary Panel lacks authority to convene a disciplinary hearing involves two important considerations: issues of statewide public interest and the capacity of the tribunal, in this case the Evidentiary Panel, to act as a court.
A. The attorney disciplinary system exists for the protection of the public.
The proper functioning of the attorney disciplinary system directly affects the public interest because the grievance system exists primarily to protect the public. Courts have continued to recognize that the attorney discipline system is expressly intended to protect the public. See generally, Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 434 (1982) ("The judiciary as well as the public is dependent upon professionally ethical conduct of attorneys and thus has a significant interest in assuring and maintaining high standards of conduct of attorneys engaged in practice."); In re Stale Bar of Texas, 113 S.W.3d 730, 733 (Tex. 2003) (jurisdictional issue under the attorney regulatory scheme promulgated by the Supreme Court of Texas presented issue of "statewide importance"); In re Lock, 54 S.W.3d 305, 311 (Tex. 2001) ("[W]e rely on the Bar to impose appropriate discipline including suspension or disbarment when the facts so warrant, to protect the public from impaired attorneys, and to improve the reputation and integrity of the legal profession."); In re Ament, 890 S.W.2d 39, 41 (Tex. 1994); (compulsory discipline protects the public from attorneys under the disability of criminal censure); Neely v. Comm'n for Lawyer Discipline, 196 S.W.3d 174, 187 (Tex. App. Houston [1st Dist] 2006, pet. denied) ("The disciplinary rules advance a substantial government interest in protecting the public from false, deceptive or misleading lawyer communications."); Rodgers v. Comm'n for Lawyer Discipline, 151 S.W.3d 602, 612 (Tex. App. Fort Worth 2004, pet. denied) ("The purpose of the rules is to protect the public from deceptive advertising, which the Supreme Court has recognized as a substantial governmental interest."); Favaloro v. Comm'n for Lawyer Discipline, 994 S.W.2d 815, 823 (Tex. App.-Dallas 1999, no pet.) (the State Bar is charged with regulating the practice of law for the protection of the public).
B. The CDC's adherence to the disciplinary rules is essential because it occupies a dual role and must avoid even the appearance of impropriety.
The Office of the Chief Disciplinary Counsel serves in a dual capacity in evidentiary proceedings. How the CDC performs its responsibilities is critical to accomplishing the disciplinary system's goal of protecting the public. Along with filing and prosecuting formal disciplinary proceedings, die CDC also provides staff support to the grievance committees which have no independent clerk or staff. After finding just cause and before filing an evidentiary petition against an attorney, the CDC requests the appointment of the Evidentiary Panel from the committee chair. The CDC maintains the case file and forwards all pleadings and motions filed by either party to the panel chair. The CDC assists in preparing the Hearing Report for the panel chair to complete at the conclusion of the hearing, drafts the judgment, and prepares the clerk's record if the judgment is appealed to BODA.
Allowing the entity responsible for obtaining panel appointments and substitutions to argue that its failure to strictly comply with the clear statutory requirements is harmless so long as the respondent does not object creates opportunity for a conflict of interest and improper handling of the panel. To prevent even the appearance of impropriety, the CDC must therefore meticulously follow the letter and the spirit of the TRDP to preserve the impartiality of the Evidentiary Panels and public confidence in their decisions. Complying with the requirement that an Evidentiary Panel have two-thirds attorneys and one-third public members is not burdensome: the CDC can simply ask the grievance committee chair for a substitute or replacement appointment.
Additionally, there is some evidence that, even had Schaefer appeared at the hearing, she would not have known that a position on the panel was vacant and, therefore, could not have objected. Frequently, not all members of a six-member panel attend the hearing. The chair introduced only the members present on the record and did not name the absent members of the panel. The only indication that the panel lacked a necessary sixth member was the "Vacant" designation on the Hearing Report. Unless a respondent attorney knew the Hearing Report existed and asked to see a copy at the hearing, his or her first opportunity to learn a position was vacant would be on appeal of the judgment to BODA when the Hearing Report becomes part of the record of the case. Thus, even an attorney who participated in the hearing would only be able to object to a vacancy on the panel for the first time on appeal.
C. A panel has to comply with the statutory requirements before it has the capacity to act as a court.
The Commission argues that the failure of the panel to comply with the statutory requirement of two-thirds attorneys and one-third public members — a statutory requirement that they concede is mandatory and inflexible — does not affect the Evidentiary Panel's ability to act so long as a proper quorum was present at the hearing. To support its position, the Commission states that the disciplinary rules do not expressly state that a five-person panel cannot act. We read the rules differently.
The TRDP have the force and effect of statutes. O'Quinn v. State Bar of Texas, 763 S.W.2d 397, 399 (Tex, 1988); State Bar of Texas-v. Wolfe, 801 S.W.2d 202, 203 (Tex. App.-Houston [1st Dist.] 1990, no writ). We apply statutory construction principles to discern the meaning of the TRDP. In re Caballero, 272 S.W.3d 595, 599 (Tex. 2008). If a statute is silent as to the consequences for noncompliance, we look to the statute's purpose to determine the proper consequences. Helena Chemical Co. v. Wilkins, 41 S.W.3d 486, 494 (Tex. 2001). All parts of a statute must be read together and given effect, if possible. Id. at 493. One provision should not be interpreted inconsistently with other provisions. Caballero at 600 (citing Helena Chemical, 47 S.W.3d at 493 ("We should not give one provision a meaning out of harmony or inconsistent with other provisions, although it might be susceptible to such a construction standing alone").
Grievance committees serve two primary functions: sitting as Summary Disposition Panels to review complaints referred by the Office of the Chief Disciplinary Counsel for dismissal and conducting formal disciplinary proceedings as Evidentiary Panels. TRDP 2.07. committees and committee panels. These include requirements for committee and panel composition, TRDP 2.02, 2.07, 2.17; quorum composition, TEX. GOV'T CODE § 81.072(j), TRDP 2.07; appointing committee members, TEX. GOV'T CODE § 81.072(1), TRDP 2.02, 2.03; appointing committee panels, TRDP 2.02, 2.07, 2.17; appointing replacement panel members, TRDP 2.06, 2.07; changes to panels, TEX. GOV'T CODE § 81.072(m)-(n); and panel voting. TEX. GOV'T CODE § 81.072(1) (k), TRDP 2.07. Committees only acquire authority to act through panels, whether as Summary Disposition Panels or as Evidentiary Panels, assigned by the district grievance committee chairs. TRDP 2.06, 2.07. As a result of the two-thirds attorney-one-third public member requirement, grievance committee panels are usually either three members or six members. In practice, the district grievance committees are typically assigned to sit in six-member standing panels.
The statutory requirements for panels are unambiguous. A panel cannot consist of five members, because the inflexible ratio of attorneys to public members becomes impossible. The TRDP contain multiple references to the requirement that panels have two-thirds attorney members and one-third public members. TRDP 2.02, 207, 2.17. The analysis of House Bill 792 (the 2001 amendments to section TEX. GOV'T CODE § 81.072 concerning changes to panels after appointment) states that the provisions for public membership on panels apply "for the purpose of convening a meeting." HOUSE COMM. ON CIVIL PRACTICES, BILL ANALYSIS, Tex. H.B. 792, 77th Leg., R.S. (2001).
The disciplinary rules also expressly require that all panel vacancies be filled. TRDP 2.06, 2.07. Furthermore, the rules treat recused panel members the same as if they are disqualified: if a panel member is disqualified or recused, the chair of the grievance committee shall appoint a replacement member. TRDP 2.06, 2.07. "Promptly" after the chair assigns a panel or replacement, the State Bar must notify the respondent attorney of the names and addresses of the panel members assigned to each complaint so that the attorney has the opportunity to object to any panelist. TRDP 2.06,
We find, therefore, that the TRDP are clear that committees only have authority to act through duly appointed panels, that all panels must contain two-thirds attorneys and one-third public members, that this ratio is strict and inflexible, and that all panel vacancies must be filled to convene a hearing. Although a four-person quorum (of a six-member panel) consisting of three attorneys and one public member would be proper were the panel itself properly constituted, In re Allison, 288 S.W.3d 413 (Tex. 2009), we conclude that it cannot remedy a fatally defective panel lacking two-thirds attorney members and one-third public members.
Given that the Texas Supreme Court and the Legislature carefully structured the requirements for grievance committee and panel composition to create accountability and openness in the disciplinary process and thereby uphold the integrity of the system, only strict adherence to the requirements which the Commission concedes are mandatory will protect public confidence in the decisions of the evidentiary panels. These requirements compel the conclusion that six-member panels must consist of six fully qualified members in order to convene a hearing.
When issuing our original judgment we considered several cases, including the cases which the Commission cites, before concluding that those cases do not control the unique requirements for formation of grievance panels as set out by the Supreme Court of Texas and the Legislature in the State Bar Act and the disciplinary rules. The Commission argues that Mapco, Inc. v. Forrest, 795 S.W.2d 700 (Tex. 1990) and Tesco American, Inc. v. Strong Industries, Inc., 221 S.W.3d 550 (Tex. 2006) require BODA to hold that an Evidentiary Panel which fails to meet the minimum mandatory statutory composition ratio of attorney and public members could nevertheless proceed to convene a hearing absent an objection.
Mapco and Tesco deal with multi-judge appellate panels. The Evidentiary Panel at issue here functions as a trial court. Unlike appellate judges, Evidentiary Panel members can participate in a decision only if they are present at the hearing at which the vote takes place. TEX. GOV'T CODE § 81.072(k). In contrast, appellate judges can decide appeals without actually being present to hear argument so long as they have access to the record. TEX. R. APP. P. 41.1(a).
Additionally, the situation here is distinguishable because both appellate panels in Tesco and Mapco were properly assigned and constituted when the cases were heard. Instead, the problems arose after argument but before the decisions issued. Mapco and Tesco deal with a properly constituted appellate panel that issued a decision contrary to statute: the Mapco opinion did not show a concurrence of a majority of the panel on its face, and the Tesco opinion was authored by a justice later determined to be disqualified to sit. Finally, in Mapco and Tesco neither party was involved in the process of seating the judge in question.
Here the record indicates that the required sixth panel member did not exist at all at the time of the hearing. A five-person panel can never meet the minimum mandatory statutory composition dictated by the disciplinary rules. If the Commission were correct, six-person panels could actually be composed of only four members (so long as those four members satisfied the requirements for a valid quorum), rendering the composition requirement for a certain ratio of attorney members and public members meaningless. Mapco and Tesco both affirm that, when a court rendering judgment has no capacity to act as a court, the resulting judgment is void. Tesco, 221 S.W.3d at 556; Mapco, 795 S.W.2d at 703.
CONCLUSION
The Supreme Court of Texas and the Legislature have dictated through multiple provisions in the State Bar Act and the TRDP that participation of a precise ratio of attorneys and public members on grievance committees and all panels is important to the proper functioning of the disciplinary system. Grievance committees and all appointed panels "must be composed of two-thirds attorneys and one-third public members," TRDP 2.02, or, restated, panels must "have a ratio of two attorney members for every public member. . . ." TRDP 2.07. The "mandatory `must have' means that there is no flexibility built into the requirement . . . "In re Allison, 288 S.W.3d at 417. The Supreme Court and the Legislature carefully structured the requirements for grievance committee and panel composition to create accountability and openness in the disciplinary process and thereby uphold the integrity of the system. Only strict adherence to the requirements which the Commission concedes are mandatory will protect public confidence in the decisions of the evidentiary panels. Meeting this requirement is not burdensome to the Commission or the Office of the Chief Disciplinary Counsel. The committee chair may simply appoint substitute panel members, if needed, from the grievance committee as a whole.
The Commission's Motion for Rehearing is DENIED, the judgment of disbarment is VACATED, and the cause is REMANDED for a new hearing.