Garcia v. Lawyer’s Discipline  

           The Texas Court of Appeals (Court) recently heard arguments concerning attorney misconduct in immigration law.  The Commission for Lawyer Discipline (Commission) brought a disciplinary action against a Texas-licensed attorney for violations of the Texas Disciplinary Rules of Professional Conduct, including Rules 5.04(a), 5.04(b), 5.05(b), and 7.01(a).  The District Court awarded partial summary judgment to the Commission for Rules 5.04(a), 5.05(b), and 7.01(a), while awarding partial summary judgment to the attorney on Rule 5.04(b).  On appeal, the Court affirmed.   

          Texas lawyer Raul Garcia worked with Cristo Vive, Christian Social Services, Inc., a nonprofit organization that offered individuals help with immigration-related matters, some of which came under the statutory definition of the practice of law.  See Tex. Gov’t Code Ann. § 81.101(a).  Garcia charged clients legal fees, and was eventually targeted by the Unauthorized Practice of Law Committee (UPLC).  Cristo Vive entered into an agreement with the UPLC, in which all "agents, officers, directors, servants, employees, successors, and assigns" were enjoined from engaging in immigration legal services, except to the extent that such agreement would violate 8 C.F.R. § 292.2, or to the extent that Cristo Vive would perform such services under the direct supervision of a Texas licensed attorney.  Afterwards, Garcia and Cristo Vive executed an agreement in which Garcia would serve as Cristo Vive’s "in house attorney," supervising all legal services the organization offered.  Garcia continued charging clients of Cristo Vive, collecting a salary of approximately $50,000 in fees not related to the types of services he provided or the number of clients he counseled. 

In June 2003, the Commission filed a disciplinary proceeding against Garcia alleging violations of the following provisions of the Texas Disciplinary Rules of Professional Conduct: 5.04(a) (fee-splitting with a non-lawyer); 5.04(b) (forming a partnership with a non-lawyer); 5.05(b) (assisting a person who is not a member of the state bar in committing UPL); 7.01(a) (practicing in private practice under a trade name).  The Commission moved for summary judgment that Garcia violated each of these rules, and in response, Garcia cross-motioned for summary judgment as well. The District Court awarded summary judgment in part to both parties, as well as a public reprimand of Garcia with costs.   

On appeal, the Court analyzed each of the Texas Disciplinary Rules of Professional Conduct.  First, the Court discussed Rule 5.05(b), which makes a violation of any lawyer to assist a non-lawyer .  The Court found that this prohibition against assisting any unauthorized practice of law (UPL), as well as the underlying ban on UPL itself, is rooted in a need to protect individuals and the public from mistakes of those who are not trained in the legal profession, and are not subject to judicially imposed discipline. See Tex. Disciplinary R. Prof'l Conduct 5.05 cmt. 1. Garcia argued that his work with Cristo Vive did not violate the agreement between Cristo Vive and the UPLC because the agreement did not extend to any services that Cristo Vive offered under the supervision of a Texas attorney.  The Court held that the lower court did not err in awarding summary judgment on this rule because Garcia was unable to raise any issue of fact as to this defense.  The Court explains that Garcia cannot use collateral estoppel as a defense because the issue of whether or not his involvement with Cristo Vive falls under an exception to the Cristo Vive-UPLC agreement has not been fully and fairly litigated.   

In reviewing Rule 5.04(a), the Rule against fee-splitting, the Court again found no error in the lower court’s decision.  The Court found that Garcia’s salary came from a "pool" of funds collected by Cristo Vive’s clients, the same pool of funds that the organization’s founder also collected a salary.  Because Garcia’s salary was not solely derived from Cristo Vive’s clients’ legal fees, there is a violation of this rule.