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Through the Looking Glass: Texas’s Anti-SLAPP Law Held Applicable to Attorney Disciplinary Proceeding

By Devin L. Kerns

"When I use a word ... it means just what I choose it to mean—neither more nor less." Comm'n for Lawyer Discipline v. Rosales, No. 03-18-00147-CV, 2019 Tex. App. LEXIS 2632, at *29 (Tex. App.—Austin Apr. 3, 2019, no pet. h.) (Kelly, J., concurring) (quoting Lewis Carroll, Through the Looking-Glass 205 (Macmillan and Co. ed. 1934) (1871)).

Texas's anti-SLAPP law, the Texas Citizens Participation Act ("TCPA"), is notoriously broad in scope. In a particularly unusual application of the statute, a divided panel of the Austin Court of Appeals recently held in Commission for Lawyer Discipline v. Rosales that the TCPA may be used to dismiss attorney disciplinary proceedings. The court employed a technical, plain-language reading of the statutory enforcement action exemption and held that the exemption did not encompass such proceedings.

Background and Court's Analysis

In 2016, attorney Omar Rosales sent demand letters to medical providers in Texas, alleging that the recipients' websites violated the Web Content Accessibility Guidelines ("WCAG") of the Americans with Disabilities Act ("ADA") and threatening the recipients with federal lawsuits. Certain providers filed grievances against Rosales with the Office of the Chief Disciplinary Counsel of the State Bar of Texas, which then instituted a disciplinary proceeding against Rosales on behalf of the Commission for Lawyer Discipline. The Commission alleged that Rosales violated the Texas Disciplinary Rules of Professional Conduct that prohibit fraudulent conduct and frivolous claims, among other Rules. Rosales moved to dismiss the proceeding under the TCPA. Rosales's tactic worked at the trial court, which granted his motion and dismissed the suit. The Commission appealed, arguing in part that the TCPA did not apply and that if it did, the Commission met its burden of proof under the TCPA procedural framework to show clear and specific evidence of a prima facie case.

In determining whether the TCPA applied, the statute's plain language ruled the day. The court held that the Commission could not take advantage of the enforcement action exemption under the TCPA because that exemption applies only to suits brought by the four entities listed—the attorney general, a district attorney, a criminal district attorney, or a county attorney. The court explained that accepting the Commission's argument that the Texas Legislature could not have intended to exclude state disciplinary proceedings "would require us to either ignore or add words to the text that the Legislature enacted[.]"

The court was not persuaded by the Commission's policy arguments to the contrary. While the Commission made "credible policy arguments . . . regarding the folly or wisdom of subjecting the Commission to the TCPA[,]" the court could not agree that applying the TCPA here would lead to "absurd results." Further, the TCPA's purpose of "safeguarding constitutional rights" was not inconsistent with the possible application of that statute to the State.

Additionally, the court's previous decision in Sullivan v. Texas Ethics Commission, 551 S.W.3d 848 (Tex. App.—Austin 2018, pet. filed), did not control because that decision held that the underlying suit was not a "legal action" to which the TCPA applied. Specifically, the court emphasized that Sullivan presented "unique circumstances"—the plaintiff in that case sued the Ethics Commission to appeal an order determining that he failed to register as a lobbyist and that assessed a civil penalty against him. The court realigned the parties and, when the initial plaintiff became the defendant, he filed a TCPA motion to dismiss the Ethics Commission's pleadings. The court denied his motion on the grounds that the instant proceeding was not a "legal action" as required under the statute. The Rosales court distinguished Sullivan and held that the Commission for Lawyer Discipline's unresolved suit seeking affirmative legal relief against the attorney fell under the broad definition of "legal action."

However, the Rosales court ultimately held that the suit should not be dismissed because the Commission introduced "clear and specific evidence" of its claim for professional misconduct by showing that (1) Rosales was a licensed attorney and (2) that he violated the Texas Disciplinary Rules of Professional Conduct by, among other things, misrepresenting the binding nature of the ADA and WCAG to providers' websites and using a misleading trade name.

Justice Kelly's Concurrence

Alluding to Lewis Carroll, Justice Kelly concurred in the court's result but opined that "[w]e are indeed through the looking glass" because the TCPA should not apply to exercises of free speech rights that go beyond what the law permits. The TCPA protects free speech rights not to an unfettered degree, but rather only to the "maximum extent permitted by law." Justice Kelly attacked the majority's application of Sullivan, explaining that Sullivan held that the TCPA did not apply to enforcement actions commenced by the Texas Ethics Commission because such an application would "frustrate the legislature's . . . enforcement of the lobbyist-registration statute[,]" which was no different than the lawyer disciplinary context. She emphasized that the differences between the proceedings of the Ethics Commission and the Disciplinary Commission were "not substantive when viewed in context." While the Ethics Commission comes to the trial court with an underlying regulatory decision in hand and the Disciplinary Commission does not, Justice Kelly detailed the "significant regulatory action" that occurs prior to the Disciplinary Commission filing suit.

Further, Justice Kelly explained that the Texas Supreme Court has broad power to promulgate rules on the procedures for asserting grievances against lawyers, but the majority's ruling essentially allowed the TCPA to trump those procedural rules. Lastly, she pointed out that lawyers do not have a free speech right to violate the Disciplinary Rules and that the majority's opinion "will only encourage attorneys facing discipline to file TCPA motions to dismiss as a way of delaying their proceedings."

Devin L. Kerns is an Associate at Vinson & Elkins LLP (Dallas). Plaintiff Commission for Lawyer Discipline was represented by Matthew J. Greer of the Office of the Chief Disciplinary Counsel, Austin, TX. Defendant Omar Rosales was represented by John W. Rudinger Jr. and Gaines West of West, Webb, Allbritton & Gentry, PC, College Station, TX.

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