As we reported last week, TCJL filed an amicus brief in a case raising serious concerns about the integrity of the civil justice system. Our brief, though, has much broader application than to this case alone. What follows is the substance of the argument we made to SCOTX. As we state in the brief:
“TCJL was founded in a period in which the integrity of the Texas civil justice system had become the subject of heated public controversy. This controversy stemmed largely from ex parte communications between certain attorneys and justices of this Court in connection with significant pending litigation. As a result, for the first time in Texas history, a sitting Chief Justice of this Court felt compelled to resign in the face of a growing corruption scandal so that he could lead a campaign in support of a different method of selecting judges in Texas. TCJL supported that effort and has ever since sought to foster and enhance the quality and independence of the judiciary so that something akin to “Justice for Sale” could never happen again.
Obviously, this case does not implicate judicial conduct but rather attorney conduct. From our perspective, however, either has equally corrosive effects on public perception of the integrity of the judicial process. We are all aware that in the last fifty years or so, Americans’ faith in the judicial branch has plummeted as partisan rancor over certain judicial decisions has amplified. As the United States Supreme Court enters its fall term, more Americans now express distrust and lack of confidence in the Court than believe in it.[1] This downward trend began in earnest around 2008 and hit bottom just this year. We wish we could say otherwise, but there is no sign that things will get better any time soon.
This situation is simply catastrophic for the country. If a majority of Americans believe that those who administer justice in our courts have lost sight of the rule of law in favor of other interests, the Republic will soon be lost. Fortunately, public distrust of the federal courts has not yet trickled down to state courts, at least not to the same extent. According to a 2025 survey conducted by the National Center for State Courts (NCSC), state courts continue to outpace levels of public confidence in state legislatures, governors, and especially the federal courts and SCOTUS. But, as the NCSC points out, all is not rainbows and unicorns:
More Americans than ever see a two-tiered system of justice. This has been a measure we have watched carefully over the years. Over the decade we’ve been conducting this annual survey, we have asked how well state courts provide “equal justice to all.” The percentage of Americans agreeing that state courts provide equal justice has slipped from 62% in 2014 to 44% this year. Recent qualitative research has revealed that Americans are concerned that politics, money, racial bias, and the cost and complexity of court all contribute to this cost gap.[2]
So why is any of this relevant to this case? So what if a lawyer deliberately tricked the Relator’s former in-house lawyer into revealing information protected by attorney-client privilege? Shenanigans like that happen every day in our courts, right? All is fair in love and litigation, is it not? That is certainly what people think. According to a 2024 Gallup survey reported in the ABA Journal, “[o]nly 16% of Americans rate lawyer’s honesty and ethical standards as ‘high’ or ‘very high.” At least that number is “better than business executives, insurance salespeople, and stockbrokers” (12%) or “advertising practitioners, car salespeople, and senators” (8%).[3] Lawyers have never been popular with anyone but their own families, as we well know, but our actual experience with lawyers tells quite a different story. Nevertheless, the low public opinion of the legal professional reflects badly on the judicial system and on the ability (or willingness) of courts and the profession to enforce their own ethical standards on practitioners. But there is no benefit in letting things go and making a bad situation worse.
Clearly, this Court has neither the capacity nor the resources to take attorney discipline into its own hands every time a serious breach occurs. But when is the breach serious enough for this Court to intervene? It could leave this case alone, relying on the trial court’s sanctions and, perhaps, future disciplinary action against the offending counsel to send the appropriate message. We do not think, however, that course of action is sufficient here. Counsel knew exactly what he was doing when he induced his opponent’s former lawyer to tell everything he knew about the Relator’s legal strategy in this matter. He knew his actions violated various disciplinary rules (if he didn’t know, he has no business practicing law). He knew that if he got away with it, he could pull the wool over the trial court’s eyes and put a fat thumb on the scale of justice. At the very least, in our view, he should be disqualified, and every attorney that tries something like that in the future should follow him into the long night of disgrace.
Whether he should any longer be permitted to hold a law license is another question, but we shudder to think that behavior like that should even occur to lawyers who take this oath:
I … do solemnly swear that I will support the Constitutions of the United States, and of this state; that I will honestly demean myself in the practice of law; that I will discharge my duties to my clients to the best of my ability; and that I will conduct myself with integrity and civility in dealing and communicating with the court and all parties. So help me God.
Based on the record before the Court, counsel for Real Parties went 0-for-4. If the underlying litigation goes on, he should have nothing to do with it. Nothing less will maintain the integrity of the judicial system, even if we are the only ones who recognize it.”
Of course, it will take more than one case to stop the bleeding and restore public faith in the fairness and independence of the judicial process. And it’s not sufficient to chalk it up to the public’s general ignorance about that process. Frankly, there is enough truth in it to justify at least some level of public dismay.
It doesn’t help very much that Texas puts a partisan label on people who are expected to ignore political considerations when they’re on the job. Our judges and justices fight that battle every day. We fear, however, that the nature of some of the issues likely to come before the Court (and some that already have) will involve political questions that have no business in the courts to begin with. If that proves to be the case, we can be assured that at least a substantial plurality of voters will, however wrongly, blame inappropriate partisan influence for the Court’s decision, one way or the other. To be sure, some of this is unavoidable, but it will only weaken public confidence even further.
We know the Legislature has no stomach for it, but we’ll say it anyway. No method of selecting judges is perfect, but we could hardly design one worse than partisan elections. They make judicial candidates beholden to the political parties for getting out the vote, since those candidates don’t have anywhere near the resources to do it themselves. They also encourage judicial candidates to collect endorsements from people with direct financial interests in the court, as well as to get themselves placed on the many slate cards disseminated by, among others, groups looking for specific decisions on certain types of cases. Voters may not know the details, but as the NCSC has shown, they know what it looks like to them.
[1] Jeffrey M. Jones, “U.S. Supreme Court Begins Term With Historically Low Ratings.” Gallup News, September 30, 2026. https://news.gallup.com/poll/715022/supreme-court-begins-term-historically-low-ratings.aspx (last accessed October 6, 2026).
[2] National Center for State Courts, “State of the State Courts: 2025 public opinion poll findings.” December 10, 2025. https://www.ncsc.org/resources-courts/state-state-courts-2025-public-opinion-poll-findings (last accessed October 6, 2025).
[3] Debra Cassen Weiss, “Lawyers viewed as more ethical than car salespeople and US lawmakers.” ABA Journal, January 30, 2024. https://www.abajournal.com/news/article/lawyers-viewed-as-more-ethical-than-car-salespeople-and-us-lawmakers (last accessed October 6, 2026). Members of Congress dragged the bottom, coming in at 6%.
