The following contains purely informational, educational or technical material. The views expressed herein represent the opinions of the author and have not been approved by the ABA House of Delegates or the Board of Governors and, accordingly, should not be construed as representing the position of the association or any of its entities.
On April 18, 2024, the 5th District Court of Appeals in Dallas issued an opinion denying a motion by Texas Attorney General Warren Kenneth Paxton to dismiss disciplinary charges brought against him by the State Bar of Texas’ Commission for Lawyer Discipline. In an interesting twist on the doctrine of sovereign immunity, Paxton claimed that because the alleged misconduct arose from statements he made in a complaint he filed as attorney general, the disciplinary proceedings are unconstitutional as violating separation of powers — that is, an invasion of the executive (office of attorney general) by the judiciary (the commission).
The disciplinary charges highlighted the two hats that Paxton wears as a public official in Texas: He has the authority to take legal action on behalf of the state, and by reason of his active license to practice law, he also acts as an officer of the court. He is accountable for his conduct in both roles.
Wearing hat number one as the attorney general, Paxton filed a Motion for Leave to File a Bill of Complaint before the U.S. Supreme Court on behalf of Texas against Pennsylvania, Georgia, Michigan and Wisconsin. The complaint in Texas v. Pennsylvania, et al, alleged that the “Defendant States experienced serious voting irregularities,” so that elections were invalid and the states’ respective electoral votes should not have been counted in the 2020 presidential election, which would have changed the election’s results. Paxton’s authority to file the lawsuit is undisputed.
Wearing hat number two, Paxton is an individual attorney licensed in Texas who has a professional duty to conform his conduct to the Texas Disciplinary Rules of Professional Conduct. As the entity responsible for attorney discipline in Texas, the state bar’s Commission for Lawyer Discipline is responsible for prosecuting attorneys who violate the rules. In its disciplinary proceedings against Paxton, the commission alleged that he made false statements in the Texas v. Pennsylvania complaint that involved dishonesty, fraud, deceit or misrepresentation, all violations of Rule 8.04(3). As summarized by the court of appeals in its decision, those statements included: “1) an outcome determinative number of votes were tied to unregistered voters; 2) votes were switched by a glitch with Dominion voting machines; 3) state actors ‘unconstitutionally revised their state’s election statutes’; and 4) ‘illegal votes’ had been cast that affected the outcome of the election.” The commission’s charges are still pending, and Paxton’s public record in Texas is free of prior discipline.
The commission claims further that the “allegations were not supported by any charge, indictment, judicial finding, and/or credible or admissible evidence, and [Paxton] failed to disclose to the Court that some of his representations and allegations had already been adjudicated and/or dismissed in a court of law.” The Texas v. Pennsylvania complaint also alleged that Texas had “uncovered substantial evidence that … raises serious doubts as to the integrity of the election process in Defendant States.” The commission charges that those representations were false and misleading, especially in failing to disclose that some of the alleged irregularities had already been litigated and dismissed. This is where the two professional hats matter.
The commission’s petition does not impact Paxton’s authority to act in his capacity as attorney general, including filing any lawsuits he deems appropriate on behalf of Texas. In fact, paragraph 13 of the Preamble to the Rules expressly states that the rules “do not abrogate” the authority of government lawyers to act as representatives of the state.
In the end, the court of appeals’ opinion captured the essence of the constitutional question and resolved it in a sentence: “Subjecting Paxton to disciplinary proceedings does not violate separation of powers; immunizing him does.” Stretching the protection of executive branch immunity (attorney general) to interfere with legitimate judicial proceedings (lawyer discipline) would be a real constitutional error.
Teresa J. Schmid is the director of the American Bar Association Center for Professional Responsibility. She is a past executive director for the Oregon State Bar and executive director for the State Bar of Arizona. She is also a past chair of the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee and a past member of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct. She is licensed and active in Illinois, California and Oregon.
The Center for Professional Responsibility provides national leadership in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection.