|Office of the Attorney General - State of Texas
September 28, 1999
Ms. Maureen E. Ray
Dear Ms. Ray:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 126918.
The State Bar of Texas received a request for "the names and contact information of the 'more than two thousand' defendants of Paul Kuusisto who have been sent letters concerning his failure to follow through on services contracted." You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code and protected by the attorney-client privilege.(1) We have considered the exception you claim and reviewed the sample documents that you have submitted.(2)
You explain that the requested information consists of the names and addresses of the clients of an attorney who has been suspended from the practice of law. You state that an agreed Immediate Interim Suspension has been entered by a Dallas County District Court ordering the interim suspension and appointing a custodian over the files of the suspended lawyer. Tex. R. Disciplinary P. 14.01. You assert that the State Bar holds the requested information "as the representatives" of the suspended lawyer. Tex. R. Disciplinary P. 13.02, 13.03(A).
Section 81.033(a) of the Government Code provides
All records of the state bar, except for records pertaining to grievances that are confidential under the Texas Rules of Disciplinary Procedure, and records pertaining to the Texas Board of Legal Specialization, are subject to Chapter 552.
Further, Rule 15.10 of the Texas Rules of Disciplinary Procedure provides that
All communications, written and oral, and all other materials and statements to or from the Commission, Chief Disciplinary Counsel, the Complainant, the Respondent, and others directly involved in the filing, screening, investigation, and disposition of Inquiries and Complaints are absolutely privileged.
The term "absolutely privileged" in rule 15.10 is synonymous with the term "confidential" in section 81.033. See, e.g., Attorney General Opinion JM-1235 (1990), Open Records Decision Nos. 384 (1983), 375 (1983). We presume from your arguments that you obtained the requested information in order to investigate or dispose of a complaint against the suspended lawyer.(3)
We recognize, however, that Rule 2.15 of the Texas Rules of Disciplinary Procedure provides that
All information, proceedings, hearing transcripts, statements, and any other information coming to the attention of the investigatory panel of the Committee must remain confidential and may not be disclosed to any person or entity (except the Chief Disciplinary Counsel) unless disclosure is ordered by the court. If there is a finding of Just Cause and any Sanction other than a private reprimand (which may include restitution and payment of Attorneys' Fees) imposed by agreement of the Respondent, all of the information, proceedings, hearing transcripts, documents, statements, and other information coming to the attention of the investigatory panel shall be, upon proper request, made public. Notwithstanding anything herein to the contrary, any action taken by a Committee to refer a matter to the Board of Disciplinary Appeals for attorney Disability screening and determination must remain confidential.
Tex. R. Disciplinary P. 2.15. You do not indicate which part or entity of the State Bar holds or maintains the requested information. See Tex. R. Disciplinary P. 6.02 (Commission for Lawyer Discipline shall disclose, upon proper request, information in its custody or control that is neither confidential nor privileged); Tex. R. Disciplinary P. 7.12 (Board of Disciplinary Appeals not subject to the Public Information Act); Tex. R. Disciplinary P. 12.03 (same rules of confidentiality of Committees applies to District Disability Committees). Nor do you indicate that Rule 2.15 is applicable to the requested information. Assuming that Rule 2.15 is inapplicable here, we believe that the requested information is confidential under the Texas Rules of Disciplinary Procedure 15.10 and is not subject to disclosure. Gov't Code § 81.033.
If, on the other hand, section 2.15 is applicable and the requested information "came to the attention of the investigatory panel," then the requested information must be released under that provision. Rule 2.15 provides that if just cause is found by an Investigatory Panel, all of the information, proceedings, hearing transcripts, documents, statements, and other information coming to the attention of the investigatory panel shall be, upon proper request, made public. Consequently, if section 2.15 applies, the information at issue is subject to disclosure under Public Information Act. Gov't Code § 81.033(a).
The exceptions to disclosure in the Public Information Act generally do not apply to information made public by other statutes. Open Records Decision No. 525 (1989). The State Bar rules have the same effect as statutes. Board of Law Examiners v. Stevens, 868 S.W.2d 773 (Tex. 1994); State Bar v. Wolfe, 801 S.W.2d 202, 203 (Tex.App.--Houston [1st Dist.] 1990, no writ); State Bar v. Edwards, 646 S.W.2d 543, 544 (Tex.App.--Houston [1st Dist.] 1982, writ ref'd n.r.e.). If Rule 2.15 is applicable, your claim under the attorney-client privilege cannot be used to withhold the information at issue. ORD 525. Therefore, if Rule 2.15 is applicable to the requested information and it "came to the attention of the investigatory panel," it must be released. Otherwise, the information is confidential under Rule 15.10 and is therefore not subject to disclosure under the Public Information Act.
We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.
Ref: ID# 126918
Encl: Submitted documents
cc: Mr. Edward Lindsley
1. Although you claim that section 552.101 excepts the information from disclosure pursuant to the attorney-client privilege, the attorney-client privilege is properly claimed under section 552.107. Open Records Decision No. 574 at 2 (1990).
2. In reaching our conclusion here, we assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988); 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
3. We note that the Texas Supreme Court recently ruled that the Unauthorized Practice of Law Committee (the "UPL Committee") is a "judicial agency" as defined by Rule 12.2(b) of the Texas Rules of Judicial Administration, and that all records of the UPL Committee are "judicial records" as defined by Rule 12.2(d). Order Vacating September 16, 1986 Order Concerning the Confidentiality of Records of the Unauthorized Practice of Law Committee, Misc. Docket No. 99-9082 (Tex. April 15, 1999) (referenced in In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768 (Tex. 1999) (orig. proceeding)). Thus, records of the UPL Committee are subject to Rule 12 of the Texas Rules of Judicial Administration, not the Public Information Act. The Supreme Court did not consider how Rule 12 would apply to specific records of the UPL Committee and did not discuss section 81.033 of the Government Code. See In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768 (Tex. 1999) (orig. proceeding).
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