Texas AG says state bar can’t discipline him for 2020 elections lawsuit

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DALLAS — Whether the Texas State Bar can take away Attorney General Ken Paxton‘s law license could hinge on whether appellate justices believe the organization is trying to control what lawsuits he files on the state’s behalf — or whether the group has the jurisdiction to punish him for pushing false theories in a lawsuit over the 2020 presidential election.

Lawyers for Paxton argued before a three-justice panel of the Texas Fifth Court of Appeals on Wednesday that the bar overstepped its bounds when it sued the attorney general last year for professional misconduct. A disciplinary committee for the State Bar of Texas, the organization that regulates law licenses in this state, alleged the attorney general made “dishonest” representations in a widely condemned lawsuit — quickly rejected by the U.S. Supreme Court — that tried to throw out election results from former President Donald Trump’s 2020 loss in four battleground states.

Paxton’s lawyers argue that, by suing him, the bar is “attempting to control the Attorney General’s decision going forward about what types of lawsuits to file, and what kinds of legal theories to pursue,” Lanora C. Pettit, principal deputy solicitor general, told justices Wednesday.

That argument drew skepticism from Justice Erin Nowell.

“That’s a big leap,” Nowell said.

Paxton’s unsuccessful attempt to intervene in four other states’ elections leaned heavily on discredited claims of election fraud in those swing states.

The Texas bar has argued its conduct rules for lawyers apply to Paxton, too.

“The underlying attorney discipline case here is about ethics,” Michael Graham, an attorney representing the state bar, told justices. “The substantive questions at the heart of that attorney discipline case, like any other, have nothing to do with politics or anything else. They have everything to do with whether an attorney is engaged in professional misconduct and, if so, what’s the appropriate disciplinary sanction for that misconduct?”

A Collin County judge hasn’t ruled on the merits of the case but sided with the bar earlier this year when he ruled the group has the ability to sue — a decision Paxton quickly appealed. The appeals court is weighing whether to reverse the lower court’s ruling, but did not rule Wednesday.

The bar’s actions raise questions about whether any elected official who is also a lawyer could have their law license threatened if a member of the public doesn’t agree with them, Justice Emily Miskel said — with which Graham disagreed.

“General Paxton, for instance, has been Attorney General for almost a decade now, and to my knowledge, there’s not a raft of complaints or attorney disciplinary actions against him for filing suits,” Graham said.

But there might be if the bar is successful, Miskel said.

“If it’s effective, then everybody should (file a grievance against) any elected official who happens to be a lawyer because it’s a great way to get a second bite at the apple of a policy decision you don’t like,” Miskel said.

That may be the case, Graham said, but such a complaint would still have to pass muster with the bar.

If the bar prevails, Paxton could face punishment anywhere from a reprimand to full disbarment and the loss of his law license.

The bar’s attempt to discipline Paxton is among several legal battles he’s waging. The Texas Senate acquitted Paxton in September on 16 articles of impeachment alleging bribery and corruption. But Paxton is expected to go to trial in April on state securities fraud charges eight years after he was first indicted on those charges.

He also faces a federal investigation into claims by former top staffers that he abused his office to help Austin real estate magnate Nate Paul, a friend and donor — claims that formed the basis of impeachment allegations against the attorney general. And on Tuesday, a Burnet County judge said those former employees’ lawsuit against the attorney general could proceed.

Disclosure: The State Bar of Texas has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.