State Bar of Texas Blog

Bar considers amendments to the Texas Disciplinary Rules of Professional Conduct

On July 7, 2010, the Supreme Court of Texas asked the State Bar of Texas Board of Directors to consider revised proposed amendments to the Texas Disciplinary Rules of Professional Conduct and provide recommendations or comments to the Court by Oct. 6, 2010.

State Bar of Texas members will likely vote on the proposed amendments in November or December 2010.

The State Bar will soon hold public education hearings around the state on the proposed amendments. Click here for the hearing schedule [PDF]

To read the proposed amendments to the Disciplinary Rules, click here [PDF], and for a redlined version, click here [PDF].

For background on the process, please visit www.texasbar.com/rulesupdate

To provide input on the proposed amendments, please leave a comment below.

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Comments (23) Read through and enter the discussion with the form at the end
Mike B - February 17, 2011 8:21 PM

Wow, you SBOT guys got owned.

Bill Mason - January 22, 2011 5:00 PM

This whole mess appears to be another step in total and absolute control/regulation of the practice of law.

Seems the 'regulatory virus' contaminating the federal bureaucracy has finally begun to infect the Texas Bar...sad!

If the ABA is for it, I'm, against it!

Cathleen Lockhart - January 14, 2011 9:29 AM

I will absolutely vote "NO".....

Steve Waldman - January 14, 2011 9:15 AM

I STRONGLY OBJECT TO THE STATE BAR BOMBARDING US WITH EMAILS SUPPORTING THESE ILL-ADVISED CHANGES, AND THEN RELEGATING THE NEGATIVE COMMENTS TO A BLOG. THIS IS AN ABUSE OF THE STATE BAR'S RESOURCES.

Ross G. Lavin - January 13, 2011 12:31 PM

I agree with former general counsel James McCormick and will vote "No" on all of the proposed amendments. No one has yet shown any evidence that there are any problems with the existing discilplinary rules.

dean white - January 12, 2011 7:59 AM

the people supporting these new rules don't have the sense god promised a jaybird.

Vera E Munoz - September 9, 2010 8:07 PM

I oppose the current version of the proposed rule changes because the vast majority of the changes do nothing more than restate the current rules. I really do not see the "radical" differences others seem to.

Jack Lee - September 9, 2010 2:54 PM

The proposed rule changes appear to be solutions hunting for a problem. I will vote NO!

Nicholas Reisch - September 9, 2010 10:10 AM

The criticisms of the proposed rule changes at Public Citizen as well as those available at www.texasrulescommentary.com are generally all valid, especially as it concerns the conflict of interest rules, the drastic changes being considered, and the problems with the additional length being added to the rules.

I understand the desire to want to make changes all at one time instead of several groups of small changes, but wholly rewriting many of the rules, especially in ways that make them much longer and more impenetrable, does not serve the interests of lawyers or the public.

I'm sure those that drafted these rules had good intentions, but I'm not sure they considered the practical effects of the changes. Moreover, the proposals do not identify why a change to the rules is necessary or, where relevant, why the change is different from the current ABA Model Rules.

If any proposal were required to include an explanation of why a proposed change was necessary and, if applicable, why it is necessary for a proposed rule to vary from the ABA Model Rules, then I think it would help those proposing the rule change to clarify the necessary changes in their own minds as well as help convince the public of the need for a change if a change is necessary.

As things currently stand, I think all the proposed rule changes should be rejected until the reason for each proposed change is made clear.

Walter Wm. Hofheinz - September 9, 2010 9:06 AM

The proposed change to Rule 1.06 is not necessary, but the change to Rule 1.07 related to conflicts of interest is awful (I started to say insane, but realized that actually it was more probably the result of not thinking through the changes, thus ignorance, or if it was thought through, but simply reflects a profoundly different policy view than mine).

The requirements of this rule will strongly inhibit, if not effectively preclude, any joint representation in litigation matters.

I believe that joint representation can be very beneficial to multiple clients who have not actual conflict since it can significantly change the economics of a lawsuit. Rarely is it detrimental to them in my experience over 31 years of practice.

The current rule provides both an adequate, ascertainable standard, and protection to clients, without an undue burden (or a nearly impossible one, with respect to disclosures) to the lawyer.

Michael R. Goldman - September 3, 2010 2:04 PM

Rule 1.05 "Confidential Information" seems to include depositions that one obtains from lawyers or other sources in earlier cases that could be used for impeachment. I used to do medical malpractice defense. We would typcially ask other defense attorneys for prior depositions of experts to impeach them. The other side did not know we were doing this, or at least the extent. I don't think I can do this anymore under this rule. Also, Fed. R. P. 26(a)(2)(B)(v) requires that you list all cases in which your expert testified for the past 4 years. Under this rule, I would then also have to ask for permisssion to get the depositions in such matters. I think this would severely affect the ability to impeach an expert as well as trial strategy.

Gerrit K. Spieker - August 29, 2010 7:39 PM

I am not an attorney but a citizen whose municipality if caught in a conflict between Rule 1.12 and the City Charter.
Rule 1.12 as written and with proposed changes does not address the dignity of a City Charter requirements in municipal settings where the City Attorney provides advice and is the Attorney of the Officers, the elected Council members and Mayor (ex Richland Hills, North Richland Hills) versus a City Charter that states the City Attorney represents the City (ex. Haltom City). See various Charters at Municipalcode.com for wordings.

In the instant case the City Attorney holds the view that he is bound by Rule 1.12, represent only the view of the voting majority, leaving the minority members of the Council and Mayor without advice or attorney services at City expense As a member of the Charter Commission many years ago, this was not the intent of the citizens. Elected official are representatives of the people in a republican form of government. I believe the proper role of the City Attorney is to advise all members of the City Council, including the Mayor on the law and legalities, leaving them free to decide the issue at hand rather than empowered by necessarily partisan advice. I invite the BAR to address this issue.
Gerrit K. Spieker

Charles Simmons - August 27, 2010 6:38 AM

I strongly oppose these changes. When will be return to being professionals and not administrative flunkies? Our own bar association treats us like cattle, much less children. Shame on them. Shame on us for letting them do it.

Marilyn Shell - August 26, 2010 8:27 AM

I agree with the comments by Public Citizen and urge the Board to incorporate their recommendatons of Public Citizen.

Matt Browning - August 25, 2010 10:09 PM

Rule 1.13 - Prohibited sexual conduct issues:

a) if a lawyer refuses to represent his spouse in a matter because the couple are having marital difficulties, fighting etc., including lack of sex, would this apply?
If this scenario would apply, then I would suggest the following change:
(a) A lawyer shall not condition the representation of a client or prospective client, or the quality of such representation, on having any person engage in sexual relations with the lawyer unless the lawyer and client are married to each other, or are engaged in an ongoing consensualsexual relationship that began before the representation.

part b is simply prostitution. Do we even need to add this to the rules?

Part c - if the lawyer is representing a client which is a corporation, how far does this rule reach? The officers, the vice presidents, the stockholders, managers? How does this effect in house counsel. Is the lawyer prohibited from any workplace romance?

I would suggest indicating that the client must be a person.

John Goren - August 25, 2010 8:42 PM

I have several concerns regarding "affiliation," "confidentiality" and a lawyer not taking a case he or she is not competent for. These concerns are all in respect to the retained lawyer seeking advice and counsel of another lawyer.

First, when I was a young practitioner solo, I frequently bounced things off older lawyers to make sure I was handling things correctly and had not missed something. These often were not emergency situations, which the new rules cover. I do not believe that the retained lawyer should be required to "associate" another lawyer or inform the client that advice is being sought. The new rules seem to squealch needed mentoring, especially where it is the mentoring-advising lawyer is not acting as a formal mentor.

Second, in my appellate practice, I frequently receive telephone calls from other lawyers for advice. And, I give that advice freely even though I may never be hired formally. Indeed, I still call other lawyers on new or novel situations to bounce things off of the other lawyer and get advice. Calling other lawyers should be encouraged; not discouraged as the new, proposed rules seem to do. The appellate practitioner's relationship is generally with the trial lawyer, not the client. Often times, I am called and because I have not been yet retained, there is a delay and advice is given to the trial lawyer regarding post-judgment or other matters that might be relevant to an expected or potential appeal. Do I have to double check now that the trial lawyer has gone through the hoops of telling his client that he intends to seek counsel of an appellate specialist before I give advice?

Third, I certainly do not have a problem with maintaining confidentiality or avoiding conflicts when I give advice, even though free, to another lawyer. I have always considered that I should maintain professional ethics towards other lawyer's client. But, I do think these new rules may go too far and put restrictions on the free flow of advice from one lawyer to another, which will endanger young lawyers, lawyers seeking expert advice, and on those lawyers who are willing to help out another lawyer.

Fourth, I am aware of various attorney listservs whereby questions are asked and other lawyer provide insight and advice. This is a new technology that in many instances replaces the phone call of the past. Do the new rules in effect prohibit this form of seeking advice on what to do, how to handle a situation presented in a case?

Rich Robins - August 25, 2010 7:12 PM

Rita Irani:
Regarding your comment that:

>Women tend to be the victims in this scenario. They need and are entitled to solid protection against predatory lawyers who would use their position of superiority to gain sexual favors.

Why not simply encourage all future female clients throughout Texas to embrace your sexist point of view, for their own good?

Rich Robins - August 25, 2010 6:55 PM

Regarding the ban on amorous relations between attorneys and new clients with whom such relations didn't previously exist, here are a few of many reasons why it should be opposed:

*If this rule passes, will opponents' legal counsel have an ethical duty (in order to be sufficiently zealous) to hire someone to impersonate a new client, then seduce the targeted attorney in order to help get the bar license revoked? At any rate:

*Can you imagine the proliferation of unwarranted complaints that could consequently emerge among clients who (predictably) aren't COMPLETELY satisfied with the legal representation's outcome and who therefore seek a quick malpractice settlement where one isn't even warranted? How can a lawyer disprove potential accusations of amorous manipulations and the like unless ALL prior interactions are elaborately recorded through both audio and video means? Surely BRITNEY SPEARS wishes she had such elaborate proof now that her former bodyguard is embarrassingly suing her for alleged sexual harassment, but there's a thing called pragmatism... Besides, wouldn't this potential SHAKEDOWN risk make it tougher for at least some clients to find affordable, accessible attorneys in the first place?

*Proponents of this reform (including academics and malpractice attorneys) get notoriety, limelight and at times donations for their corresponding efforts to enact this reform. But should they also get to have their way especially when they, themselves, wouldn't be affected? For example, how vigorously (if at all) have the law professors preaching change similarly recommended a total ban on amorous relations between professors and students? So why the DOUBLE STANDARD against practitioners, then? Meanwhile, would money-thirsty legal malpractice attorneys really be sacrificing much if the reform gets approved in the upcoming referendum? FOLLOW THE MONEY...

*Don't existing rules, laws and market forces already adequately protect against the problem of which Puritanical types are complaining involving attorneys' potentially amorous relations? We have to avoid conflicts of interest, malpractice, bad reputations, breach of contract lawsuits and the like.

*Unlike lawyers, doctors and even psychologists can sedate clients (through collaboratively prescribed medications, hypnosis & even clinical couch sessions, etc.) so their professional guilds' having reportedly recently banned amorous relations within their professions in some locales seems understandable. Besides, both "helping" professions are also heavily subsidized involuntarily by us taxpayers (medicare, medicaid, etc.) so their members know they had better maintain the right public image while our national debt continues to skyrocket very profitably for them as the final line at this website reveals:

http://www.USDebtClock.org .

*Lawyering is stressful for both clients and their legal counsel. The greatest temptation involved may be the temptation to give up and quit altogether. Consenting adults can nevertheless provide much needed affirmations even as their opponents would opportunistically have them believe that their legal causes and arguments are devoid of merit. Preserving such potential for enhanced teamwork is always a bad thing?

*Didn't George Herbert Walker Bush publicly criticize those who denounced tax cuts by saying they remind him of Puritans who, centuries ago, used to get very upset worrying that somewhere out there, others were having too much fun?

Don D. Ford III - August 25, 2010 5:14 PM

Regarding Proposed Rule 1.14 when a client's capacity becomes an issue: As stated, the Rule says that the attorney should either seek a guardian ad litem or a guardian. I sit on the Supreme Court's Guardianship Certification Board, and I litigate guardianship cases regularly. If an attorney determines that his client has lost capacity, the attorney should submit an Information Letter under Section 683 of the Probate Code to the appropriate court with guardianship jurisdiction. Pursuant to that letter, the Probate Court should enter a probable cause finding and appoint a guardian ad litem to determine if a guardianship is necessary. The Rule, as proposed, would allow the attorney to file the Application for guardianship, which will almost always place the attorney in a conflict with his client because the guardianship would be necessary, in part, to ratify the attorney's actions on behalf of the client. I have seen this problem arise in the context of a couple of my cases, and it has always looked as though the attorney was taking advantage of the client who had lost capacity. I would strongly suggest that the language of this proposed rule be changed to eliminate references to seeking a guardian but instead should reference Section 683 and instruct the attorney to file an information letter with the appropriate court with guardianship jurisdiction in the county and seek the appointment of a guardian ad litem.

Angela Wood - August 18, 2010 9:34 AM

I oppose the proposed changes to Rule 1.13 and suggest that the Bar adopt the Model ABA rule that simply prohibits sex with clients. The rule is clear and unambiguous.

Rita Irani - August 18, 2010 8:38 AM

The Bar should urge adoption of the ABA rule prohibiting sex with clients. It is straight forward and likely to be more effective than than the proposed rule.

If lawyers find their true love in a client they should terminate the attorney client relationship promptly and find an unrelated and competent lawyer to continue the representation while they pursue their love interest. Emotional attachment and good lawyering don't mix. Women tend to be the victims in this scenario. They need and are entitled to solid protection against predatory lawyers who would use their position of superiority to gain sexual favors.

David Sibley - August 17, 2010 8:53 PM

With respect to proposed 1.13, how many good marriages have resulted from men and women who originally met out of a legal representation? If not a good marriage, how many good relationships? How many presently married lawyers met their spouses this way?

Is there really any empirical evidence at all of abuse in any significant numbers by a lawyer of a spouse or girl/boy friend in this context?

I seriously doubt it. If anything a client who becomes a girl/boyfriend or spouse undoubtedly gets better not worse representation usually.

Of course, sex can be abused or misused in this context like any other context but to outlaw it completely because it is possible to abuse it?

This strikes me as a politically correct rule that is not well founded in reality.

Probably, few truly abusive attorneys will get snagged by this rather attorneys who think they have found love will be. When the relationship goes bad, this rule be used as a weapon.

Joe - August 11, 2010 8:52 PM

I strongly oppose Rule 1.16. Declining or Terminating Representation allows D.A.s and C.A.'s to make any excuse to not represent us as victims of crimes and therefor allowing perpetrators of felony crimes including individuals attempting murder to roam free amongst the innocent. ref. May 20th attack on a father and grandmother returning a 2yr old child and being ambushed and nearly killed by a mob of over 20 people. The childs mother broke my moms neck resulting in near surgery and months of rehab. I was hit from behind w/ a metal object and kicked and beaten for 10 to 15 minutes while unconscious resulting in many injuries 3yrs later. Please dont let them take away anymore of our rights!!!

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