What every lawyer should know about
the State Bar of Texas– Professional Enhancement Program

By ROBERT S. BENNETT and RENÉE E. MOELLER

The Professionalism Enhancement Program (PEP) was created in 1995, in response to investigatory panel findings that the Grievance Committee in the Dallas Regional Office of the State Bar of Texas was receiving complaints about attorneys having difficulty with employment contracts, client communication and similar issues. The goal of the PEP is to reduce conduct that is unprofessional, but may not give rise to an ethical violation, in order to address the actual problems attorneys are facing. PEP neither detracts from nor diminishes the impact or effect of the disciplinary system in any way. Working within the existing system, it aims to enhance the ethics and professionalism of the members of the bar. PEP’s focus is on skills enhancement, recidivism prevention, education, training and the improvement of very specific behavior problems.
In the case of conduct that is considered unprofessional but is not an ethical violation, PEP works to prevent that conduct from rising to the level of a sanctionable offense. The concern is that if problems go unaddressed, an attorney will get the message that their behavior is acceptable. When the conduct does rise to the level of a sanctionable offense, the concern is that a sanction alone does little to address the real problem and prevent recidivism. For example, an attorney can be sanctioned for a failure to return telephone calls, but the sanction alone is no guarantee that the attorney will develop a communication system that will keep clients informed. Another example would be missing a deadline. In these instances, sanctions alone are not enough. By participating in PEP, the attorney can discuss with other experienced attorneys how to institute procedures to address their specific problems. They can get advice on how to respond timely to client telephone calls and how to create more efficient docketing systems, thereby empowering the attorney with the means to correct a problem.
A PEP panel is made up of four volunteer lawyers and two lay persons who have been sworn in as members of the local Grievance Committee, but are assigned to participate in PEP. The PEP panel members are assigned for three years by the Regional Office of the State Bar of Texas for the area they serve. They do not serve on any other Grievance Committee panels, hear grievance cases or issue sanctions. The attorney members are experienced attorneys, and many are solo or small firm practitioners. There are two PEP panels serving the Houston area. The members of the 2002-2003 panels are: (Monday Panel) Sharon Doyle, Eric Hagstette, Thomas Martin, Keith Peterson, Tom Regal and Marilyn Westheimer; (Wednesday Panel) Peter Blute, Lynne Clarke, Porfirio Diaz, Jr., P. Carl Dore, Jr., Doris Markoff and Patricia Mathis.
There are two ways of entering PEP: an attorney may contact the PEP program seeking guidance and assistance with a perceived problem or lack of information, or an attorney may be referred to PEP through the grievance process. Sometimes an attorney may contact PEP as a pre-emptive measure if they believe something has happened that may turn into a grievance. By seeking assistance through PEP in this manner, if a grievance is later filed, the attorney can point out that they have already acknowledged and sought a remedy to the problematic situation. “Bad people don’t go to PEP.”1 Whether by voluntary participation or by referral, the participants in PEP have not intentionally harmed a client or violated professional ethical standards. PEP is meant to be remedial rather than punitive or coercive.
The primary duties of a PEP panel include assessing the potential causes underlying problems an attorney may have with clients, judges or other attorneys. The panel conducts non-adversarial, non-confrontational meetings to identify communication practices, interpersonal relationship patterns, law office management deficiencies or other problems that impede the delivery of quality professional services. Working with an attorney, the PEP panel develops and implements a plan of action to address identified problems. This may include additional referrals to specific Continuing Legal Education (CLE) programs; assigning a mentor for an area of practice, which is generally done in the case of an attorney who is inexperienced in a particular area or for a newly licensed attorney; and referrals to various law office management advisors.
In the instance of a pending grievance matter, the panel helps the respondent attorney understand the causes of the grievance and identify the behavior which contributed to the grievance. Together, they seek ways to improve the attorney’s skills to avoid such a grievance in the future. When appropriate, the panel may make referrals to particular CLE events, law office management services, Texas Lawyers’ Assistance Program (TLAP) or local counseling services.
The PEP panel meetings generally take place at the local SBOT office and last approximately half an hour. On an average, two to three meetings are held; however, each individual attorney and situation are different. The program is not structured toward time periods but toward the accomplishment of a goal: better education and information to avoid problematic situations. There is no cost to attend PEP itself; however, if CLE is recommended, the attorney is responsible for CLE expenses.
All proceedings of PEP meetings and information disclosed therein are confidential. However, due to ethical requirements, if it is discovered during a PEP meeting that an attorney has committed a violation of the rules of professional conduct that raises a substantial question about the attorney’s honesty, trustworthiness or fitness, the PEP panel is required to report the violation to the disciplinary counsel. The attorney is informed of this prior to the PEP meeting. With that caveat, the confidentiality is complete. This may or may not hamper discussions, depending on how the attorney has arrived at PEP. If an attorney has been referred to PEP through the grievance process, it may be wise to limit the subject matter of discussion to the subject of the referral. As to the subject matter of the referral, one should be candid. While an attorney generally does not bring their attorney to the PEP meetings, on occasion it has occurred. Darcia Elliot, PEP coordinator for the Houston area, said that bringing one’s own attorney is allowed, since the point of the meetings is to promote discussion and interchange. “A few nervous individuals have attended with counsel.”2
All contacts between the attorney and the PEP panel are handled discretely, with no identification of any connection to the State Bar or grievance process given to any office staff or other persons. SBOT membership records do not indicate that an attorney has participated or is currently participating in PEP. When an attorney has been referred to PEP through the grievance process,
the nature of the “report” sent back to the Grievance Committee is one of either compliance or non-compliance. “Compliance” is a matter of scheduling and attending the requested number of meetings (usually two to three) and the completion of homework assignments given to the attorney. For instance, if the topic of discussion at a PEP meeting is a conflict of interest problem, the attorney may be asked to pull several cases on conflict of interest, review them and be prepared to discuss the cases at the next meeting. Compliance does not require a change of opinion as to the ethical correctness of one’s past actions, although it is hoped that the attorney would see how and why the problem arose.
In some grievance complaints, prior to making a determination as to whether just cause exists to recommend a sanction, the investigatory panel may continue its hearing and recommend that the attorney participate in PEP. After completion of the PEP phase, regardless of whether the respondent attorney has complied, the investigatory panel reconvenes the hearing and proceeds to a determination of whether just cause exists. Although there are no statistics available, non-compliance is the exception. In such cases, it is generally assumed by PEP that a respondent who fails to comply with the program would ultimately be sanctioned by the Grievance Committee. Again, there are no statistics available. It should be noted, however, that agreement to and participation in PEP, does not, in and of itself, mean that no sanction will be levied against the respondent attorney.
In summary, the PEP program can be very helpful, especially when entered into voluntarily, rather than by a referral from a Grievance Committee. It is remedial rather than punitive. However, participants should remember two key points: (1) the PEP panel is required to report certain violations of applicable rules of professional conduct to the disciplinary counsel and (2) in the grievance process, the referral to PEP, in and of itself, does not absolutely preclude further sanction against the attorney.

Endnotes
1. Telephone interview with Donna Cole Tipotsch, PEP Coordinator, Dallas Regional Office of the State Bar of Texas (Aug. 29, 2002). 2. Telephone interview with Darcia Elliott, PEP Coordinator, Houston Regional Office of the State Bar of Texas (Aug. 29, 2002).


Robert "Bob" S. Bennett represents bar applicants, attorneys and judges before the Board of Law Examiners, the Commission for Lawyer Discipline, the Board of Disciplinary Appeals, and the Commission for Judicial Conduct.

Renee E. Moeller specializes in briefing and research, and has briefed disciplinary matters at all levels up through and including appeals to the Supreme Court of Texas. They practice at The Bennett Law Firm.

< BACK TO TOP >