AMICUS BRIEF

LDAD Submits Amicus Brief Against Attorney General Paxton

June 28, 2021

May 17, 2023

Photo: Dylan Hollingsworth/Bloomberg via Getty Images

LDAD and sixteen distinguished Texas Bar members recently filed an amicus brief in a Texas Court of Appeals case against Texas Attorney General Kenneth Paxton. The brief refutes Paxton’s dangerous claims that the State’s separation of powers and sovereign immunity doctrines immunize him and all other Texas executive branch attorneys from disciplinary proceedings for alleged violations of Texas legal ethics rules. 

The brief is in support of an ethics petition that the Texas State Bar filed against the Attorney General for having made dishonest statements and misrepresentations to the U.S. Supreme Court in his December 2020 case, Texas v. Pennsylvania, seeking to overturn the results of the 2020 presidential election. 

LDAD’s separation of powers argument emphasizes that, although Texas law gives the Attorney General “broad discretion” to conduct civil litigation, such discretion does not grant a free pass to violate the State’s ethics rules that apply to all Texas-licensed attorneys. Further, Paxton’s argument that sovereign immunity precludes lawyer disciplinary proceedings against him is based on a false premise. Because disciplinary proceedings potentially only result in professional sanctions against lawyers personally, they are outside the express purposes of sovereign immunity.   

The brief also argues that Texas courts should reject Paxton’s separation of powers and sovereign immunity claims because they would violate the fundamental American principle that “no person is above the law” and would “undermine public respect for the administration of justice, lawyers and the legal profession” for the State’s 30 million people. It would be a dangerous precedent for any State to unjustifiably immunize their own government’s attorneys from prosecution for ethics violations. 

For an example of media coverage of this case and LDAD’s arguments, see Law 360, Texas Attys Back Bar’s Disciplinary Action Against State AG. 

LDAD is grateful to Co-Founder Gershon (Gary) Ratner for writing the brief, in consultation with fellow board member Nicholas Fels.

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