Could This Anti-SLAPP Ruling Help Lawyers Dismiss Attorney Discipline Cases?

By: Angela Morris

A ruling Wednesday by Austin’s Third Court of Appeals finding that an anti-SLAPP law applied to an attorney ethics case will open the flood gates for lawyers looking dismiss disciplinary charges against them, one justice warned in a concurring opinion.

The majority opinion by the Texas appellate court reinstated the attorney discipline case against Omar Rosales, but not before making a significant finding: that a defendant in an attorney ethics case could rely on anti-SLAPP legislation, which allows early dismissal in First Amendment cases.

Rosales allegedly broke ethics rules by sending misleading and deceitful letters to medical providers regarding their websites’ compliance with the Americans with Disabilities act. But he had successfully argued that the state’s anti-SLAPP law protected him from the allegations by the State Bar of Texas Commission for Lawyer Discipline.

The appellate court in Commission for Lawyer Discipline v. Rosales found the Texas Citizens Participation Act, the state’s anti-SLAPP law, applies to lawyer discipline cases, even though the bar’s disciplinary commission argued otherwise. Yet after weighing the specifics of Rosales’ case, it overturned the dismissal because it ruled that the bar had shown enough evidence for a prima facie case against the attorney.

Gaines West, who represents Rosales, said it’s a good opinion because it ruled the TCPA does apply to lawyer grievances. He wrote in a statement that Rosales would appeal the ruling to the Texas Supreme Court, because it was incorrect for the Third Court to find the commission established its case with clear and specific evidence, and incorrect that Rosales failed to establish defenses to the claims.

Not everyone agrees the anti-SLAPP law should come into play in the lawyer discipline system. Justice Chari Kelly, in a concurring opinion, likened the case to “Alice in Wonderland,” saying we’re “through a looking glass” if a  law meant to protect free speech, association and petitioning the government is now being used as a barrier in attorney discipline cases. She agreed with the majority’s end result in the case, but not its reasoning.

She wrote that the anti-SLAPP law shouldn’t trump the Texas Supreme Court’s authority to set rules for grievance proceedings, nor the statute that governs lawyer discipline.

“It should not go unnoticed that the majority’s ruling will only encourage attorneys facing discipline to file TCPA motions to dismiss as a way of delaying their proceedings,” she wrote. “This court will be faced with more and more TCPA appeals in disciplinary proceedings. There is no free speech right, right of association, or right of petition for lawyers to violate the disciplinary rules. The purpose of the disciplinary rules is to protect the public from unethical lawyers.”

The tort reform group Texans for Lawsuit Reform has supported a bill, HB 2730, that would narrow the scope of the anti-SLAPP law. TLR singled out Rosales’ case as an example of the law going too far, touching on matters the legislature never intended to impact.

The majority opinion by Chief Justice Jeff Rose, however, noted that the commission did argue on appeal that the TCPA wouldn’t apply in lawyer discipline cases. The court disagreed, noting the law lists four entities which bring government-enforcement actions that are exempt from the law, yet the commission was not among them.

“If the legislature had intended to exempt lawyer-discipline enforcement actions brought by the commission through the chief disciplinary counsel, it could have included text to that effect,” Rose wrote.

However, the commission also argued the trial court shouldn’t have dismissed its case because it had established enough evidence for each of its claims against Rosales. In this situation, the anti-SLAPP law bars courts from dismissing a case.

Rose wrote that the commission’s detailed pleadings did carry the burden of establishing evidence of the claims for the purposes of the anti-SLAPP law. The opinion noted that the TCPA gives defendants a chance to assert evidence of a valid defense of claims, and still win a dismissal. Rose wrote that the defenses Rosales raised on appeal were self-serving and conclusory, and hadn’t raised any fact issue, or established enough evidence of his defense.

Claire Mock, a spokeswoman for the bar’s Office of Chief Disciplinary Counsel, which represents the commission, declined to comment.