On October 19, 2023, Sidney Powell, Donald Trump’s former lawyer, pled guilty to six misdemeanor counts of conspiracy to commit intentional interference with performance of election duties according to Politico. Under the plea deal, Powell was sentenced to six years’ probation and will have to pay some fines and restitution. Powell had been charged under Georgia’s anti-racketeering law along with 18 other co-defendants, including Trump, for trying to subvert the 2020 election results in Georgia. Powell was prosecuted under the Georgia First Offender Act, which means, because she has no prior felonies, she will not have a criminal record if she complies with all aspects of the agreement she made with prosecutors.
Powell’s guilty plea may open her up to new disciplinary charges by the State Bar of Texas, her state of licensure. Her story provides an opportunity to take a look at the ABA Model Rules and the Texas ethics rules regarding the treatment of lawyers who are convicted of or placed on probation for various crimes.
Powell has already been the subject of one disciplinary case in Texas that began in 2022. That case stemmed from sanctions Powell received from a federal judge in the Eastern District of Michigan in August 2021. In Michigan, Powell was sanctioned for using abusive litigation tactics in filing frivolous lawsuits seeking to challenge the 2020 presidential election results. In the 110-page opinion, the judge in that case ordered monetary sanctions against Powell and others pursuant to Rule 11 of the Federal Rules of Civil Procedure, as well as the court’s inherent authority. The judge also referred the sanctioned lawyers to the Michigan Attorney Grievance Commission—who filed now-pending disciplinary charges against Powell as a result of that referral—as well as the disciplinary authority in each of their states of licensure, writing: “This warrants a referral for investigation and possible suspension or disbarment to the appropriate disciplinary authority for every state bar and federal court in which each attorney is admitted.”
The opinion also includes a footnote (No. 85) suggesting that any disciplinary authority reviewing Powell’s behavior should consider that she was soliciting donations from supporters that would dilute any deterrent effect of the monetary sanctions imposed by the court.
These sanctions against Powell were upheld by the Sixth Circuit on appeal and rehearing was denied.
In March 2022, the State Bar of Texas filed a disciplinary petition against Powell in the District Court for Dallas County, Texas, where Powell has her principal office. The filing was the result of numerous grievances filed by the public and focused on Powell’s conduct in the Sixth Circuit—the filing of frivolous lawsuits and misrepresentations to the court—for which she received Rule 11 sanctions. That petition also included a charge under Texas rule 8.04(a)(3), which makes it a violation for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
Powell defended against the charges claiming there was no evidence to support a violation of any disciplinary rule and filed a no-evidence motion for summary judgment under the Texas Rules of Civil Procedure Rule 166(a)(i). Judge Andrea Bouressa, a Collin County judge sitting by appointment in this case, dismissed the case and granted a summary judgment in favor of Powell in February 2023. Judge Bouressa cited the Texas Bar’s lack of summary-judgment evidence and exhibits that had “numerous defects” in dismissing the case. That dismissal is now on appeal to the Dallas Court of Appeals.
Powell’s Georgia plea deal gives the Texas State Bar’s chief disciplinary counsel new and additional grounds for a second disciplinary action against Powell. If the Texas Bar decides to act, it can do so on its own initiative and does not need to wait for a grievance to be filed by the public. And this time, as a result of the plea, the charges could be based on violations of the rules regarding criminal conduct—rules that were not applicable in the first disciplinary proceeding. The good news for the Texas Bar is that, at a minimum, the Georgia plea is an admission of a crime making a second case against Powell less likely to be dismissed on a no-evidence motion for summary judgment.
The most obvious rules that may be in play due to Powell’s guilty plea are (1) Texas Rule 8.03(e) concerning self-reporting, (2) Texas procedural rule Rule 8.01, concerning compulsory discipline, and (3) Texas Rule 8.04(a)(2)(3) and (4) defining professional misconduct related to criminal conduct and dishonesty of different kinds. By pleading as she did, however, Powell has most likely avoided the first two rules entirely.
Powell’s plea to misdemeanor charges for intentional interference with performance of election duties would not have to be reported to the Texas Bar because the self-reporting requirement under Texas Rule 8.03(e) applies only to lawyers convicted or placed on probation for “barratry, any felony, or for a misdemeanor involving theft or misappropriation of money or other property or any attempt, conspiracy, or solicitation of another to commit any of those crimes”.
And Powell has also likely avoided the Texas Bar bringing a compulsory-discipline case against her under Texas disciplinary procedural rule 8.01 et seq. This rule requires that the state bar institute disciplinary proceedings against Texas lawyers convicted of or placed under probation for “intentional crimes.” The compulsory-discipline rules also require that a lawyer found to have violated an “intentional crime” must be disbarred or have their license suspended; lesser sanctions are not allowed. Powell has dodged application of this rule because “intentional crime” is defined in the Texas rules to include a “serious crime” or misapplication of funds by a fiduciary. The definition of a “serious crime” can include a misdemeanor, but only if it involves theft, embezzlement, or similar misappropriation of money; the crimes to which Powell pled guilty do not meet the definitions under this rule.
Although Powell may not have to report her plea deal to the Texas State Bar, and the state bar is likely not required to institute compulsory disciplinary proceedings against her, that doesn’t mean that her conduct cannot be sanctioned as a violation of the Texas Rules of Professional Conduct. Texas Rule 8.04(a) provides that a lawyer shall not, among other things:
(2) commit a serious crime or commit any other criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(4) engage in conduct constituting obstruction of justice . . . .
At this point it is worth looking at how the ABA Model Rules differ from the Texas rules that may apply to Powell’s guilty plea. First, ABA Model Rule 8.4(c) is identical to Texas Rule 8.04(a)(3) above, and it is nearly certain that Powell’s guilty plea would be seen as an admission of conduct by a lawyer involving “dishonesty, fraud, deceit or misrepresentation,” which is all that is required under both rules. As is noted above, the Texas Bar brought a charge under this rule in the first proceeding that was dismissed on summary judgment, but Powell’s guilty plea gives them new facts and a second chance to try and discipline her under 8.04(a)(3) if they want to.
Model Rules 8.4(b) and (d) have two key differences when compared to the corresponding Texas rules. Model Rule 8.4(b) requires only that a lawyer “commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.” The corresponding Texas rule 8.04(a)(2) includes this same language, but also makes it a rule violation to commit a “serious crime.” As noted above, the definition of “serious crime” does not include the misdemeanors to which Powell has pled guilty, but admitting guilt to conspiring to interfere with an election is almost certainly a “criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.”
Model Rule 8.4(d) makes it a disciplinary violation for a lawyer to engage in “conduct that is prejudicial to the administration of justice.” Many other states have adopted this model rule as written. Texas, however, is not one of them. The parallel Texas Rule, 8.04(a)(4), requires something more: “conduct constituting obstruction of justice.” “Obstruction of justice” is not defined in the Texas disciplinary rules, and none of the various crimes described in Chapter 38 of the Texas Penal Code, entitled “Obstructing Governmental Operation,” seem like a good fit for the crimes that Powell has pled to. On the other hand, the conduct that Powell was sanctioned for in Michigan under Rule 11 is most certainly “conduct that is prejudicial to the administration of justice,” and the crimes that she has now admitted to in Georgia are arguably so. That means that under the ABA Model Rules, there is a good argument to be made that at least some of Powell’s reported conduct has violated Model Rule 8.4(d). Discipline is less likely under the Texas version of this rule due to the higher standard of “obstruction of justice.” It is interesting to note that the Texas Bar did not allege a violation for “obstruction of justice” under this rule in the first case it brought against Powell based on her conduct in the Sixth Circuit.
That leaves us with just two Texas disciplinary rules likely to apply to Powell’s guilty plea. A misdemeanor may not be a “serious crime” under the Texas definition, but it is a “criminal act” and that is all that Texas Rule 8.04(a)(2) requires where honesty, trustworthiness, and fitness as a lawyer are in question. It also is not much of a reach to say that conspiring to interfere with a presidential election is “conduct involving dishonesty, fraud, deceit or misrepresentation” under Texas Rule 8.04(a)(3). By pleading only to six misdemeanors, Powell has likely avoided self-reporting and compulsory discipline under the Texas disciplinary rules, but it would not be surprising if the bar concluded that the guilty plea was nonetheless an admission of a disciplinary violation under Texas Rules 8.04(a)(2) and (3). If this is the case, it seems likely that her problems with the Texas Bar are far from over.
