I came across this story from July while writing my post about Ken Paxton’s trial date.
A court of appeals reinstated a Commission for Lawyer Discipline action against the first assistant attorney general for his role in the 2020 election-questioning campaign by former President Donald Trump supporters.
First Assistant Attorney General Brent E. Webster was suspended Attorney General Ken Paxton’s co-counsel in Texas v. Pennsylvania, a failed filing to the U.S. Supreme Court that concerned voters in Pennsylvania, Michigan, Wisconsin and Georgia.
[…]
While in Paxton’s case, the district court denied his plea to jurisdiction and he appealed, the district court in Webster’s case ruled the opposite, granted the plea to jurisdiction and dismissed.
The Commission for Lawyer Discipline appealed, and on July 13 Chief Justice Yvonne T. Rodriguez ruled “the commission’s jurisdictional allegations affirmatively demonstrate the trial court’s jurisdiction.”
Brynne VanHettinga, an inactive Texas attorney, filed the grievance against Webster, which led to an investigation and a grievance panel report that credible evidence supported a finding of professional misconduct.
VanHettinga alleged the Texas v. Pennsylvania pleadings included manufactured evidence, specious legal arguments, unsupported factual assertions, unfounded claims, and conspiracy theories, and that Webster violated his oath as an attorney and a public servant.
Just as in circumstance with Paxton, Webster was offered a chance to accept a public reprimand, he refused and the commission took the matter to district court.
The 368th District Court of Williamson County accepted Webster’s challenge to the court’s jurisdiction, based on his argument the commission’s actions violated the separation of powers and sovereign immunity.
Rodriguez’s opinion states the commission’s claims clarify the state is not the real party in interest.
“The substance of the commission’s petition targets Webster personally, not in his official capacity. For example, the commission seeks ‘a judgment of professional misconduct’ against Webster, something that affects only his license to practice law in Texas and has no effect on the state,” Rodriguez said.
“it is not the filing of that (SCOTUS) suit that the commission’s disciplinary proceeding targets but specific alleged misrepresentations in its pleadings,” Rodriguez said. “Further, the Commission does not pursue relief that would ‘control state action.’”
Immunizing Webster from professional misconduct proceedings in no way supports Webster’s sovereign immunity rationale, the opinion said, because there are no civil damages against the state.
Webster argued the immunizing executive branch attorneys from disciplinary proceedings is “harmless” because they are subject to checks on their ethical obligations in other ways, Rodriguez noted.
“However, the Disciplinary Rules of Professional Conduct contemplate and reject the same principle; the Rules may be enforced only through ‘the administration of a disciplinary authority,’” Rodriguez noted.
“That attorneys have ethical obligations that may be policed elsewhere is thus inapposite, as no other mechanism can regulate Webster’s Texas-law license,” the chief justice concluded.
See here and here for the background. I thought that judge’s ruling was bad and I wanted it appealed, and hey, I got my wish. That doesn’t mean that the complaint against Webster will necessarily move forward, it means that the matter goes back to the district court, where Webster can and presumably will try again to get it dismissed. He’ll need to run out a new argument, and we’ll have to see what he goes with. Paxton’s defense, which as noted was not enough to get his lawsuit tossed, is basically the same and awaits a hearing from the Dallas Court of Appeals. Hopefully this will knock a little wind out of his sails as well. I’ll try to keep an eye on this going forward.