Two states recently considered whether the separation of powers precludes attorney disciplinary authorities from pursuing certain complaints against the state attorney general or the firm’s senior attorneys. Texas made it harder to hold lawyers accountable, but Montana refused to comply.
Texas Two-Step began after the 2020 presidential election. Texas Attorney General Ken Paxton and First Assistant Attorney General Brent Webster petitioned the U.S. Supreme Court for permission to file a lawsuit challenging Texas’ election administration in four other states. Seventeen Republican state attorneys general filed amicus briefs in support of the petition. Although the court quickly rejected Texas’ effort, many observers deemed it frivolous.
The Texas State Bar Disciplinary Commission received more than 80 complaints against Mr. Paxton and Mr. Webster, including from individuals and organizations outside the state. Texas attorney Sidney Powell received 10 additional complaints for his involvement in a lawsuit seeking to overturn the election. The Texas Legislature responded in 2023 by enacting a law that significantly limits who can file disciplinary complaints that lead to litigation.
By then, the commission had already filed a motion in state court to discipline Mr. Webster based on complaints that predated the law’s enactment. The commission alleged that he violated Texas’ disciplinary rules by making false statements to the U.S. Supreme Court in a Texas filing challenging the results of the presidential election. When the case reached the Texas Supreme Court, 18 Republican state attorneys general filed amicus briefs supporting Webster’s separation of powers argument.
in Webster v. Attorney Disciplinary Commissionthe Texas Supreme Court dismissed the case in a 7-2 decision. Citing separation of powers concerns, it effectively stripped the commission of its authority to pursue certain complaints against lawyers in the executive branch.
To reach this result, the court found that the Texas Constitution empowers the Attorney General and the First Assistant Attorney General to file petitions with the court and evaluate the adequacy of the petition’s language. The court declared that these ratings were “given on a special occasion.” constitutional Level of collateral review by other branches. ” At the same time, the court asserted that Texas courts have inherent authority to discipline attorneys. The court’s power to hear cases “includes the ability to hold the Attorney General (and other executive branch attorneys) accountable for litigation actions.”
The court was clearly unhappy that the commission brought this case, especially since the issue was based on a complaint by an out-of-state attorney.
It therefore declared that the commission’s petition amounted to a “collateral attack” that violated executive privilege. The court said that “incidentally” disciplining a first aide for comments made during opening arguments ran a serious risk of dragging the judicial branch into political conflict. Therefore, in this “narrow situation,” the court held that, due to the separation of powers, violations based on the representations in the initial pleadings could only be addressed by the court in which the pleadings were filed, and not by the commission, unless the judge referred the matter there.
The dissenting justices considered the majority’s “newly established direct/collateral distinction” to be unprecedented and illogical. They stated that “no court has ever held that the separation of powers prohibits the judiciary from regulating the enforcement of laws by one lawful means when it allows the same effect to be achieved by another lawful means.” If they are dissatisfied with the process the court has created, he added, “we should change the process based on principles we develop as we go along, rather than declaring constitutional inapplicability on a case-by-case basis.”
rear webster Upon sentencing, the court dismissed the pending disciplinary case against Paxton, which was nearly identical to the commission’s case against Webster.
The Montana Supreme Court recently declined to follow Texas’ precedent. The Montana case also arose from a bitter political dispute between the state legislature, represented by Attorney General Austin Knudsen, and the governor and judicial branch officials. During the litigation, Knudsen made disparaging remarks about the Montana Supreme Court. He also waited eight months to comply with the court order. The Montana Supreme Court’s Practice Committee found ethical misconduct and recommended that Knudsen be suspended for 90 days.
Because of the withdrawal, only two judges participated in the case, and five trial court judges were seated by appointment. Although writing for the majority, the Chief Justice appears to be an outstanding figure. webster This is based on the differences in the constitutions of the two states. Montana’s constitution requires the attorney general to be admitted to the practice of law and “in good standing,” and specifies that the judicial branch’s authority extends to regulating “admission to the bar and conduct of lawyers.” There is no similar constitutional requirement for the Texas Attorney General, and the power of Texas courts to regulate law enforcement is inherent and statutory and not contained in any specific constitutional provision. The majority also reasoned that: webster The court said its decision was “narrow” and applied to arguments in opening arguments, not violations of court orders. Montana court did not mention webster’s Direct/collateral distinction.
The court further found that Knudsen violated Montana’s Rules of Professional Conduct. However, it declined to take any disciplinary action because it concluded that Mr. Knudsen’s due process rights had been violated by the Montana Board of Practice.
The Montana court was right to avoid it. webster’s Approaches not considered. of webster The decision includes language that could be used to strip state disciplinary authorities of their authority to pursue a variety of legitimate complaints against attorneys in the executive branch. Even in the context of arguments, the attorney general can have a significant impact on the perceptions of the parties and the public. Authorizing only the judge to whom a petition is filed to initiate discipline ignores practical realities.
The Texas court’s argument that any punishment against Webster should have been instigated by the U.S. Supreme Court was fanciful. Although the court receives between 7,000 and 8,000 credible petitions each period, the court does not appear to have imposed sanctions for frivolous or misleading filings. In a 1985 opinion, the four justices explained that they opposed awarding even modest monetary damages in dishonorable cases because it would take too much time to do justice.
Lower courts have also shown little appetite for cracking down on illegal behavior by lawyers. They rarely impose sanctions for rule violations that occurred in previous cases. Doing so consumes valuable time and court resources. And judges rarely refer lawyers to disciplinary authorities. If the wrongdoing attorney is a powerful state attorney general, the trial judge is especially unlikely to impose sanctions or file disciplinary action.
Disciplinary committees are better equipped than courts to investigate lawyer misconduct and hold hearings in the first instance. These committees have generally shown restraint in handling complaints against attorneys in the executive branch. They should not be stripped of their authority to investigate and pursue meritorious complaints against executive branch officials. In doing so, some state attorneys general may seek to push the boundaries of ethics even further. Other courts will likely refuse to follow Texas’ example.
Leslie Levin is the Hugh McGill Professor of Law Emeritus at the University of Connecticut School of Law. Her scholarship focuses on the legal profession, attorney regulation, and ethical decision-making.
Recommended Citation: Leslie Levin Texas just steps away from responsibility for government lawyers; Montana won’t follow suitSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (March 6, 2026), https://statecourtreport.org/our-work/analysis-opinion/texas-two-steps-away-government-lawyer-accountability-montana-does-not
