Wednesday, April 1, 2009

Order To Produce Escrow Records Overturned

The Texas Board of Disciplinary Appeals conditionally granted mandamus relief to an attorney (not named in the order) who had been the subject of a 2006 bar grievance that alleged failure to account for monies given by a client in a custody dispute. The accused attorney responded to the complaint but the State Bar filed an evidentiary petition alleging a number of ethics violations including failure to safekeep client property. The complainant was deposed and denied personal knowledge that the lawyer had engaged in dishonest conduct. An amended petition was then filed against the lawyer that included four checks not listed in the original complaint. The attorney's motion to strike the new charges in the amended petition was denied.

The State Bar then sought six years of escrow records from the lawyer, who objected to the requests as overbroad, burdensome, beyond permissible discovery, vague, available from other sources and privileged. The attorney sought mandanus relief when a panel ordered partial production of the records sought.

The commision found it had the authority to grant mandamus relief. It held that the order of production was overbroad as "the commission has not shown how trust account records of any of Attorney's other clients were relevant to the issues in this particular case." The order to compel production of the records was thus vacated. (Mike Frisch)

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