Dear John,
As we have previously reported, LDAD and a group of distinguished Texas lawyers sought disciplinary action by the State Bar of Texas against state Attorney General Kenneth Paxton and filed amicus briefs in a parallel action against his First Assistant, Brent Webster. The State Bar’s subsequent ethics complaints were based on misrepresentations in pleadings that Mr. Paxton and Mr. Webster had filed before the U.S. Supreme Court seeking to overturn the results of the 2020 presidential election in four states.
Mr. Webster and Mr. Paxton challenged the authority of the Commission for Lawyer Discipline to file such complaints, citing separation of powers and sovereign immunity. Intermediate appellate courts rejected those defenses, and Mr. Webster appealed to the Texas Supreme Court.
On appeal, the parties agreed that under the applicable precedents, the legal standard for whether separation of powers would prohibit the Commission from bringing a professional misconduct proceeding against an Attorney General or his Assistant was, essentially, whether such a proceeding would “unduly interfere” with the Attorney General’s “constitutionally assigned powers.”
In their amicus brief, LDAD and the Texas lawyers had argued that, just as Mr. Webster conceded that the Attorney General did not have “constitutionally assigned power” to engage in criminal conduct or actions beyond his authority, he likewise did not have such power to violate Texas’s ethics rules. Therefore, separation of powers did not bar the Commission’s proceeding against Mr. Webster.
On December 31, 2024, the Texas Supreme Court held that separation of powers did bar the Commission’s disciplinary proceeding against Mr. Webster and reversed the appellate court’s judgment. The Court did not, however, apply the “constitutionally assigned powers” test. Instead, it created a novel legal standard for separation of powers.
The Court held that, for misrepresentations in pleadings to a court, separation of powers permits only “direct” review of the Attorney General, that is, by the “court” to which the alleged misrepresentations were made, not “collateral” review by an entity in the judicial branch that was not a “court.” Even though the Commission for Lawyer Discipline had been created by statute pursuant to the Texas Supreme Court’s inherent authority to regulate the legal profession and was indisputably a part of the judicial branch, it was not a “court,” and, accordingly, was barred by separation of powers from bringing a disciplinary proceeding against the Attorney General or his Assistants.
In a strong dissent, Justices Boyd and Lehrmann, stated: “If (as the Court concedes) the judicial branch has inherent power to discipline executive-branch attorneys for engaging in professional misconduct, it may – consistent with the separation-of-powers doctrine – discipline that attorney through any lawful exercise of that power. The Court’s freshly minted direct/collateral distinction is unheard of in separation-of-powers jurisprudence. It lacks both legal support and logical sense.”
Notwithstanding the outcome of this case, LDAD remains committed to seeking accountability for lawyers who violate state disciplinary rules in matters that threaten American democracy and the rule of law.
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Lawyers Defending American Democracy
