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State Bar of Texas Investigating Whether AG Ken Paxton’s Failed Post-Election Lawsuit to SCOTUS Was ‘Professional Misconduct’

Ken Paxton at CPAC

ORLANDO, FLORIDA – FEBRUARY 27: Ken Paxton, Texas Attorney General, speaks during a panel discussion about the Devaluing of American Citizenship during the Conservative Political Action Conference held in the Hyatt Regency on February 27, 2021 in Orlando, Florida.

The State Bar of Texas is investigating the Lone Star State’s Attorney General Ken Paxton (R) over his unsuccessful legal efforts to overturn President Joe Biden’s victory in the 2020 presidential election.

Originally reported by the Associated Press, the investigation is premised on the idea that Paxton’s failed legal wrangling was both frivolous and unethical in violation of professional standards promulgated by the nominally self-governing legal organization.

Law&Crime independently obtained copies of the complaint, supporting documentation and the group’s responses.

The complaint was filed by 71-year-old Kevin Moran, the president of the Galveston Island Democrats and a former journalist, last December.

Focusing on the rejection of Paxton’s motion for leave to file bill of complaint with the U.S. Supreme Court seeking to invalidate numerous votes in Georgia, Michigan, Pennsylvania and Wisconsin, the bar complaint claims that Paxton “committed misconduct by filing a frivolous lawsuit” that he knew was misleading and would deprive voters of the franchise.

“Paxton tried to disenfranchise millions of voters in those four states,” Moran told Law&Crime. “According to some statistics, that’s ten percent of all the voters in the United States. He wanted to take away and dump their votes. Ten percent of all the voters in the country. And it wasn’t even his state. It’s crazy.”

The complaint says the case for subjecting Paxton to penalties is “simple” because Texas’s top law enforcement official “knew the lawsuit lacked any legal merit when he filed it” and that it was “common knowledge across the nation and world that it had no chance of being adjudicated” by the nation’s high court.

The legal credentialing organization originally declined to act by misclassifying the nature of Moran’s grievance in early January.

“Based on the information you provided and a strict interpretation of the Texas Disciplinary Rules of Professional Conduct as drafted by the Texas Supreme Court, our examination of your grievance has led us to conclude that it should be classified as an Inquiry,” State Bar of Texas Assistant Disciplinary Counsel D. Smith wrote in the denial letter. “Therefore, your grievance has been dismissed pursuant to rule 2.10 of the Texas Rules of Disciplinary Procedure.”

That rule states: “The Chief Disciplinary Counsel shall within thirty days examine each Grievance received to determine whether it constitutes an Inquiry, a Complaint, or a Discretionary Referral.”

But, as it turned out, the first lawyers to survey the complaint against Paxton apparently got the classification wrong.

Moran appealed in early February. The Board of Disciplinary Appeals, a body of 12 lawyers appointed by the Supreme Court of Texas, overturned the state bar’s initial dismissal in late May.

“After reviewing the grievance as filed with the State Bar Chief Disciplinary Counsel’s office and no other information, the Board grants the appeal, finding that the grievance alleges a possible violation,” BODA Executive Director and General Counsel Jenny Hodgkins wrote. “The Board of Disciplinary Appeals will now return the case to the Office of the Chief Disciplinary Counsel for investigation and a determination whether there is just cause to believe that [Paxton] has committed professional misconduct.”

In approving the appeal, Hodgkins noted that Paxton may have violated the rules governing “Meritorious Claims and Contentions” and “Candor Toward the Tribunal.” Respectively, rules 3.01 and 3.03 of the Texas Disciplinary Rules of Professional Conduct.

The first rule, which governs frivolous claims reads, in full:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous.

The second rule, which outlines general expectations of honesty and ethical considerations for a lawyer reads, in relevant part:

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision; (4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (5) offer or use evidence that the lawyer knows to be false…

“Ken Paxton did not file this lawsuit in good faith by any stretch of the imagination,” Moran told Law&Crime. “That’s one thing. The other thing is that Rule 3.03 refers to misleading filings in lawsuits that you know are not true.”

“Paxton alleged fraud in these four state’s elections knowing that about 70 judges across the country had already declared those claims false–that there was no fraud,” he continued. “And he filed it anyway. And after he filed it and experts across the country said it was without merit, he refused to withdraw it. He did mislead or attempted to mislead the U.S. Supreme Court. No question about it.”

Law&Crime reached out to Paxton for comment but no response was immediately forthcoming at the time of publication.

[image via Joe Raedle/Getty Images]

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