Over a pair of dissents, the Texas Supreme Court has overturned a Commission for Lawyer Discipline proceeding against a Texas lawyer for misconduct that occurred in an Illinois federal court.
Nejla Kassandra Keyfli Lane v. Commission for Lawyer Discipline (No. 23-0956; June 6, 2025) arose from a 2014 divorce case in an Illinois court. Lane represented a party in a contentious divorce in which she filed an action in federal court alleging that the opposing party violated federal wiretap law. That case went to a federal magistrate, who denied Lane’s motion for more time to conduct discovery. In 2017 she sent a series of emails to the magistrate that were at best intemperate and at worst derogatory toward the magistrate and the court staff. After the case ended, the magistrate reported Lane’s conduct to the Northern District of Illinois, which suspended her from the court’s general bar for violations of the ABA Model Rules of Professional Conduct. In 2019 the Illinois Supreme Court’s Attorney Registration and Disciplinary Commission filed a complaint as well, alleging violations of the Illinois Rules of Professional Conduct.
To her credit, Lane reported the suspension to the Texas State Bar and was told that, at least at that time, the Texas rules didn’t require reporting of federal discipline. When the Illinois Supreme Court suspended Lane in January 2023, Lane duly reported it to the Chief Disciplinary Counsel. In February 2023 the Commission filed a petition for reciprocal discipline with the Board of Disciplinary Appeals. Lane contested the petition on a variety of grounds. BODA split over the matter, but a majority voted to issue a Judgment of Partially Probated Suspension (six-month suspension followed by a three-month probation period). Lane appealed to SCOTX.
In an opinion by Justice Huddle, SCOTX reversed. The issue was whether Rule of Disciplinary Procedure 17.06(A), which prohibits discipline for misconduct that occurred more than four years before the Commission’s Chief Disciplinary Counsel receives notice, barred BODA from sanctioning Lane. First, the majority disposed of the Commission’s argument that Lane had to affirmatively plead Rule 17.06(A) as a defense, which she didn’t do. No matter, the Court held Lane didn’t waive the defense, partly because the direct action to BODA was not the same as an appeal to a court of appeals.
Turning to the merits, the majority brushed aside the Commission’s argument that the four-year limitations period didn’t apply because Lane’s 2023 email informing them about the Illinois disciplinary action was not a “grievance” that started the four-year clock. It further rejected BODA’s conclusion that in reciprocal discipline cases, the “professional misconduct” did not refer to the underlying conduct that got Lane in trouble to begin with, but the Illinois Supreme Court’s January 2023 order. Not so, said the majority, since Texas Rule 1.6(CC)(1) defines “professional misconduct” as “[a]cts or omissions by an attorney, individually or in concert with another person or persons, that violate one of more of the Texas Disciplinary Rules of Professional Conduct.” The majority read this language as relating back to the “acts or omissions,” not the Illinois Supreme Court’s determination that sanctionable conduct had occurred. Finally, the Court opined that if the Commission’s position was correct, no limitations period would apply to reciprocal discipline cases at all, no matter how old they were.
The majority opinion drew two dissenting opinions, one by Justice Boyd (joined by Justice Busby) and the other by Justice Busby. Justice Boyd argued that the majority misinterpreted Rule 9.04, which lists the defenses an attorney must allege in a reciprocal discipline case and prove by clear and convincing evidence. If the attorney doesn’t do that, those defenses are waived. And just because Rule 9.04 doesn’t specifically list Rule 17.06, doesn’t mean that an attorney gets off the hook of affirmatively pleading limitations. In Justice Boyd’s view, the majority erred in distinguishing Rule 17.06 from a statute of limitations and applying a different pleading rule. “If it seems to the Court that this result is overly harsh or unworkable, we should engage in the proper procedural process of amending the rules to product a different result,” Justice Boyd opined. “We should not judicially amend the rules in a case-specific opinion that ignores or rewrites the very language we have adopted and approved.”
Justice Busby went a step further. He pointed out there are two “pathways” that Commission can take in reciprocal discipline cases. The first applies when the Commission receives notice of conduct in another jurisdiction that violates the Texas rules, in which case the Chief Disciplinary Counsel initiates the “grievance” process. The second applies when the Commission hears about the misconduct and resulting discipline in another state, in which case the Counsel files the discipline order and a petition for reciprocal discipline with BODA. Counsel took the second road and, Justice Busby asserted, Rule 17.06 didn’t trigger until Counsel received the discipline order from Illinois. Even so, the offending emails, sent in 2017, and Counsel received notice fewer than four years later. “Because the Court reaches a different conclusion by mixing up the two pathways,” Justice Busby concluded, “[] its reasoning leads to the absurd result that reciprocal discipline was barred by limitations before the Chief Disciplinary Counsel could ever have sought it.”
This seems like a pretty close call to us. What confuses us is the effect of the attorney’s self-reporting. If the rules don’t require it, does it have any effect? Can we say that the Chief Disciplinary Counsel had “notice” by virtue of such a report? Or does “notice” have be something that comes through official channels? As Justice Busby points out, in reciprocal discipline cases “notice” has to attached to “discipline” in the other state, which didn’t happen here until relatively recently. Justice Boyd may have it right. The rules are not clear. We get it that a majority of the Court may not have felt too comfortable with sanctioning the attorney again for conduct that occurred more than a decade ago. But, again as Justice Busby pointed out, the misconduct was pretty bad and certainly inexcusable. We don’t know how frequently these reciprocal discipline cases occur, but maybe there needs to be clarification so that we don’t end up excusing some really bad violations of our rules.
