St. Mary's Journal on Legal Malpractice & Ethics

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St. Mary's University School of Law

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The Texas Supreme Court’s decision in In re State Bar of Texas should be modified. In In re State Bar of Texas, the Court allowed the use of a criminal defendant’s expunged records in a subsequent disciplinary proceeding against his attorney. Allowing the use of expunged records for any purpose violates Texas law. For example, under the Texas Code of Criminal Procedure, it is an offense to knowingly release or use expunged records for any reason, unless a court’s final expunction order permits the expunged records to be retained for future use or if a defendant waives his or her right to expunction before the order is finalized. Nonetheless, the Texas Supreme Court has potentially opened the door for an attorney’s expunged records to be used against him or her in a disciplinary hearing.

Authorizing a criminal defendant’s expunged records to be used in a disciplinary proceeding against an attorney directly opposes the intent of Texas’s expunction statutes. The expunction statutes are meant to prevent expunged records from being used in the future. Furthermore, the expunction statutes impose criminal liability if the statute is violated. Thus, the Commission’s use of the defendant’s expunged record against his attorney would constitute a crime. Nevertheless, the use of expunged documents in disciplinary proceedings, when no exception applies, is a direct violation of Texas law. Therefore, the Texas Supreme Court should modify its holding because it potentially creates an improper precedent and could allow misinterpretations to justify improper uses of expunged records in later attorney-disciplinary hearings.