Grievance proceeding lack full due process rights granted by the United States Constitution
Yet the Texas Supreme Court does not grant those due process rights to grieved attorneys. As in every case, there are two sides to the story. Attorneys, just as their clients, have due process rights that must be closely safeguarded. Despite the fact that the foremost purpose of the disciplinary rules is to protect the public and not simply to punish the attorneys, many courts view disciplinary proceedings as a punishment or a penalty imposed upon a lawyer, as seen by cases decided in the United States Supreme Court and in the Fifth Circuit. (Ex parte Garland, 4 Wall. 333, 380; Spevack v. Klein, 385 U.S. 511, 515 (1967)
Disbarment and Suspension Proceedings & the Standard for Burden of Proof
Disbarment proceedings, and by extrapolation, suspension proceedings are viewed as quasi-criminal in nature. In Re Ruffalo, 390 U.S. 544 (1968). Furthermore, in federal court, the burden of proof required in a disbarment (or suspension) proceeding is that of clear and convincing evidence. In re Medrano, 956 F.2d 101 (5th Cir. 1992). However, the Texas Chief Disciplinary Counsel bears the burden to prove the material allegations of a charge by merely a preponderance of the evidence. TRDP 2.17 (M). This standard is clearly inconsistent with the holdings of the federal courts. Therefore, it is important to bear these federal constitutional due process standards in mind during all stages of the grievance process. Furthermore, are Texas attorneys willing, and if so, when, will they take this matter up to the United States Supreme Court?