Random Profile - Douglas Clayton, Southlake

For Random Profiles, we randomly pick one of our 80,000-plus attorneys and do a Q&A. We've found that every Texas lawyer has an interesting story. Will yours be next?

If you could be anyone else for a day, who would it be? Tony Romo, preferably on a Sunday in early February.

Bet you didn’t know:  I’ve been an extra in two Hollywood movies.

Favorite saying/quote: “When a defining moment comes along, you define the moment or the moment defines you.” Roy “Tin Cup” McAvoy

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Make an impact by serving on a State Bar committee

State Bar of Texas President-Elect Bob Black will soon begin making committee appointments for 2011.

State Bar committees work on a wide range of programs and issues facing both lawyers and the public. The work of the State Bar would not happen without the efforts of countless dedicated and generous volunteers.

If you are a Texas lawyer and would like to volunteer, check out our list of committees and then fill out a committee interest form no later than Dec. 3, 2010.

Next Texas Legislative Hero Award will go to Texas Senator Steve Ogden

The next Texas Access to Justice Legislative Hero Award will be awarded to Texas Senator Steve Ogden during a special ceremony on Friday, September 24, at 1 p.m. at the Lone Star Legal Aid office in Bryan, Texas.

The Texas Access to Justice Commission and Texas Access to Justice Foundation Legislative Hero Award recognizes legislators who have significantly advanced access to justice in Texas by assisting with the appropriation of funds and/or other substantive activities related to the provision of legal aid in the state.

Steve Ogden is chairman of the Senate Finance Committee and served three terms in the Texas House of Representatives before he was elected Senator for District 5.

Legal Services Corporation chair comments on poverty data

John G. Levi, chairman to the Legal Services Corporation (LSC), posted a statement on the LSC website today regarding the 2009 statistics on poverty released by the Census Bureau. According to the report, more Americans qualify for LSC assistance due to lower incomes than in previous years.

Levi points out that LSC-funded agencies already don't have enough resources to offer assistance to everyone who seeks legal help. He encourages "the national legal community to increase its volunteer pro bono work at LSC programs."

Read the entire statement at the LSC website.

Preventing and Resolving Law Firm Disputes

A new State Bar of Texas CLE course premieres this week to focus on an area of growing concern to the legal profession. "Lawyer and Law Firm Disputes: Problems and Prevention" will be held Friday, September 17, in Dallas at the Belo Mansion. The brainchild of Interim Dean Susan Saab Fortney of the Texas Tech University School of Law, the course brings together top experts to discuss intra-firm litigation, loss prevention, risk management, lawyer mobility, de-equitization, and more. The keynote speaker is Professor Robert W. Hillman, author of Hilman on Lawyer Mobility: The Law and Ethics of Partner Withdrawals and Law Firm Breakups. The luncheon speaker will be W. Mark Lanier, recognized by the National Law Journal as one of the nation's Top Ten Trial Lawyers and one of the Most Influential Lawyers in America.

Accredited for 7.25 MCLE hours, including 3.25 hours ethics, the course will be recorded and archived for future viewings at TexasBarCLE.com.

LeadershipSBOT kicks off with Habitat for Humanity

The LeadershipSBOT class of 2010-2011 had its first session of the program today. It assisted in the deconstruction of a home as part of their work with Habitat for Humanity. Also helping out today was Texas Young Lawyers Association (TYLA) President, Jennifer Evans Morris (pictured left).

The State Bar established the LeadershipSBOT program to prepare lawyers for leadership positions in the legal community. Participants commit to serve at least one year on a committee or board of the State Bar, and must demonstrate a willingness to use the LeadershipSBOT experience within their communities.


Final hearing on proposed changes to TDRPC takes place in Austin Sept. 10

More than 80 people attended the ninth and final hearing on proposed disciplinary rules changes on Sept. 10 in Austin.

Click here to listen to an audio recording of the hearing.

State Bar President Terry Tottenham welcomed those in attendance, Tom Watkins of Austin presented an overview of the rules, and State Bar Immediate Past President Roland Johnson served as moderator. Also on hand were State Bar directors Steve Benesh of Austin, Roy Brantley of College Station, John Hatchel of Woodway, Jo Ann Merica of Austin and Annettee Raggette of Austin. Also in attendance were State Bar President-elect Bob Black of Beaumont, Supreme Court Justices Phil Johnson and Dale Wainwright, Supreme Court Rules Attorney Kennon Peterson, and Hon. Charles Holcomb of the Third Court of Appeals.

Ron Beal, Baylor Law School professor, was the first to comment, addressing Rule 3.05 and ex parte communications with a tribunal, saying the proposed change would have a devastating impact on administrative law, and that the definition of "pending" case be retained. "It is imperative that the provision be put back in the rule. A client must know exactly who will make a decision at the time of filing. It is highly unethical otherwise."

Pamela Bolton of Texas Watch, a consumer advocacy group, was the next to comment on Rule 3.05. "Allowing an attorney to attempt to persuade an agency before she has actually filed smacks of impropriety. Regardless of what actually occurs behind closed doors, public perception is negatively impacted," she said. "This is a basic public policy question about open government: do we want to shine sunlight on lawyer-agency communications or do we want to allow industry attorneys to work behing closed doors to sway state-paid officials?"

Cyrus Reed, a non-lawyer with the Sierra Club, Lonestar Chapter, also testified against the changes to Rule 3.05 (c), urging that current language be retained. "It is important that clear, ethical guidelines for lawyers exist, and that undue influence be prevented."

Bruce Bower, an attorney with Texas Legal Services Center who has 34 years experience in administrative law in four states, wrapped up comments on Rule 3.05 with, "Let communication be on the record. Foster transparency and foster confidence in the legal system."

Jim Parker, an Austin trial lawyer, addressed several rules, taking issue with "informed consent" and urged that the rule be more clear.

Next up was Tom "Smitty" Smith, director of the Texas office of Public Citizen. Among his concerns - "changes that we believe would permit unreasonable fees and expenses, reduce client confidentialty protections, and permit ex-parte agency contacts."

Julie Oliver, who also testifed at the Lubbock hearing and representing the Texas Coalition on Lawyer Accountabilty, expressed concern that there has been "missed opportunities" to protect the public, and cited nine rules.

Ginny Agnew of Herring & Irwin in Austin told the panel, "It is absurd that Texas doesn't have a prohibition against sex with clients. It is an embarrassment to our profession." She suggested that the rule be "unequivacable and enforceable," suggesting the ABA Rule on the topic is clear. Supreme Court Rules Attorney Kennon Peterson offered clarification on the proposed rule and added that in drafting the rule, concern was extended to affording protection to people who are not clients, such as the daughter of a client. Peterson also indicated that addressing "expenses" in addition to "fees" is already occurring.

Susan Morrison of The Fowler Law Firm in Austin, and speaking on behalf of "Texas women lawyers," also urged changes to Rule 1.13. "We've been asking for more than 10 years that this be addressed. We need to bring our level of professionalism at least up to the level of massage therapists. They have a rule. We need one. Let's do it."

Jim McCormack of Austin asked, "Is there enough benefit to the public and the legal profession of the proposed rules to justify the fiscal impact?" Several additional questions were fielded as the hearing ran over its 2 p.m. end time.

Johnson reminded the group that the State Bar Board of Directors will address the proposed changes at its Oct. 1 meeting and make a recommendation to the Supreme Court of Texas by Oct. 6. He reminded people to contribute comments on the blog or via email to rcantu@texasbar.com.

For details on the proposed amendments, please visit www.texasbar.com/rulesupdate.


September Texas Bar Journal focuses on wellness issues

This month's Texas Bar Journal focuses on strategies for lawyers dealing with anxiety, mental health, substance abuse and addiction, and depression. One important highlight is The Texas Lawyers Assistance Program (TLAP) and the help it can offer lawyers in need. TLAP provides crisis counseling and referrals for lawyers, judges, and law students coping with substance use disorders and mental health issues. Find out more in the TBJ article. To get information or to seek help, you may reach TLAP at 800-343-8527 or visit their web page at www.texasbar.com/tlap.

Public education hearing held in San Antonio Sept. 9

About 30 people attended the Thursday, Sept. 9, public education hearing in San Antonio on the proposed amendments to the Texas Disciplinary Rules of Professional Conduct.

Click here to listen to an audio recording of the hearing.

Once again, State Bar President Terry Tottenham welcomed those in attendance, Tom Watkins of Austin presented an overview of the rules and State Bar Immediate Past President Roland Johnson served as moderator. Also in attendance were local directors Allan DuBois of San Antonio and Steve Schechter of Boerne, Supreme Court Chief Justice Wallace Jefferson, and Supreme Court Rules Attorney Kennon Peterson.

Only two people formally commented.

Enrique Valdivia, an attorney with the San Antonio office of Texas RioGrande Legal Aid, took issue with proposed Rule 3.05 -- maintaining impartiality of a tribunal and ex parte communications. "Don't eliminate Section (c)," he said. "It's important to keep the rule as is." He referenced a specific case and the importance of transparency in administrative and environmental law cases.

Robert Loree, a partner in a small firm in San Antonio, asked a question regarding the binding arbitration clause in proposed Rule 1.08 and whether it is in conflict with the Texas General Arbitration Act. Watkins responded that when a statute is more restrictive than a DR, "you got to do both" and that the statute is not in conflict with the rule. Loree stated his firm has extensive experience handling such disputes and has four cases pending before the Texas Supreme Court. He said, "Satellite litigation doesn't advance the merits of the claim. As a practitioner, I'd like to see the rule benched. In the long run, it's in the best interest of both the client and the lawyer."

A question was posed as to how soon the implementation of new rules could be anticipated. Johnson reminded the group that the State Bar Board of Directors will address the issue at its Oct. 1 meeting, make a recommendation to the Supreme Court of Texas by Oct. 6, and when the court is ready it is likely that a referendum will take place. He reminded people to contribute comments on the blog or via email to rcantu@texasbar.com.

For details on the proposed amendments, please visit www.texasbar.com/rulesupdate.

The ninth and final hearing will take place at the Texas Law Center in Austin on Friday, Sept. 10.



Public education hearing: McAllen, Sept. 8

About 50 people attended the Wednesday, Sept. 8, public hearing in McAllen with seven people commenting on the proposed Texas Disciplinary Rules of Professional Conduct. As at most of the prior hearings, Tom Watkins of Austin presented an overview of the rules and State Bar Immediate Past President Roland Johnson served as moderator. Local director Arnold Aguilar was on hand to hear from constituents. Supreme Court Justice Phil Johnson, State Bar President Terry Tottenham, and Supreme Court Rules Attorney Kennon Peterson were also at the hearing.

Click here to listen to an audio recording of the hearing.

Speaking at the hearing:

  • Pamela Brown, an attorney with Texas RioGrande Legal Aid in Weslaco, thanked the Bar for coming to the Valley and acknowledged the work that had been put into considering and drafting the proposed rules. Brown applauded proposed Rule 1.13, Prohibited Sexual Relations with Clients, relating a story of a client who was allegedly raped by her attorney and who filed a grievance but learned there was no applicable rule for her circumstance. Brown suggested that “expenses” be added to part (b) so that it would prohibit sexual relations as payment for fees and expenses.

    Brown supported proposed Rule 3.03 (b) and (c), Candor Toward a Tribunal, and commented that, if followed, these rules will greatly benefit her clients, all of whom are poor. 

    Brown expressed concern that by adding “reasonably” into proposed Rule 1.01(a), regarding a lawyer’s competence in accepting or continuing employment, the rule has been changed from an objective rule to a subjective rule. She said that adding the “loosy goosy” wording makes lawyers feel better entering into new areas of practice but does nothing toward “protection of the public.” Watkins explained that in this particular case, a scienter rule was applied and that some people like that addition while others do not.

    The final rule Brown commented on was Proposed Rule 3.05, Maintaining the Impartiality of a Tribunal. Recognizing that one of the concerns is that there are non-attorneys who appear before administrative tribunals, she compared that to a judicial proceeding where pro se litigants are also prohibited from ex parte communications with judges. She contended that no one who appears before an administrative board or decision maker should be communicating with those entities. Balancing the playing field and protecting the public must be the priority in this setting and Brown suggested this is true whether there is a “pending matter” or not.

    Watkins discussed how Proposed Rule 3.05 had come about. Because regulations and permitting processes can be extremely complicated, he said it has been necessary and a common practice for lawyers to go to agencies to figure out what is needed and what the process is prior to submitting a permit. He added that if the rule moves away from the current proposal it is going to prohibit what a whole bunch of lawyers consider regular practice. But he also noted that the rule may need to be reanalyzed.
  • David Hall, executive director of Texas RioGrande Legal Aid, endorsed Legal Aid’s position on proposed Rule 3.05 but primarily spoke on proposed Rule 1.08(e), which prohibits a lawyer from accepting compensation for representing a client from one other that the client unless the client provides informed consent. This is problematic for Legal Aid, Hall explained, because all of its clients’ fees are paid by sources other than clients. Hall said that TRLA receives funding from more than 60 sources and that providing meaningful informed consent to clients would be burdensome and add up to 4,000 hours per year in additional labor. Watkins explained that his interpretation of the rule is that salaried lawyers are not subject to this rule because their compensation is not based on whom they represent. He admitted it is not clearly set out in the rule and encouraged Hall to write a letter addressing this concern and suggesting a solution. Hall liked Watkins’ interpretation but said, unfortunately, that is not what the current proposal says.
  • Juanita Valdez-Cox, executive director of La Union del Pueblo Entero (LUPE), complained that there was no representative of the community on the task force. She testified that the public needs input to ensure the public is protected. She complained that public comments that were sent in during the comment period in the fall of 2009 were ignored. Watkins assured her that public protection is paramount to the process and said the task force started with a public member but that person resigned. A legal aid lawyer is now on the State Bar TDRPC Committee but that has not always been the case. Peterson said that comments were received from Public Citizen during the comment period and that changes did come out of those recommendations.
  • Gary Gurwitz, an attorney with Atlas and Hall in McAllen, said that the most grievous change from the October 2009 proposed rules was the change to Rule 1.07 regarding representing multiple clients in the same matter. He called it a critical rule in ensuring that lawyers have provisions to follow when representing multiple clients. He explained the extensive process that led up to the original proposal and supported returning to that verbiage. Gurwitz believed the proposal was emasculated because lawyers were afraid that nobody would sign an agreement with so many provisions. He disagreed with that contention saying he had never had a client walk away because of too much disclosure. Gurwitz said that the proposed rules are now weaker than the rules currently in effect. He supports a fail-safe rule that would give lawyers protection because they would know exactly what they have to say and would protect the public because they get a lot more information.
  • Alejandro Moreno, Jr. of Edinburg commented on proposed Rule 1.08(g)(2) regarding arbitration. Moreno suggested that lawyers only be allowed to require arbitration if they are representing a client in arbitration and if the representation is in court then a dispute also be resolved in court.
  • J.W. Dyer of the Dyer Firm in McAllen asked about the “deposition product” under proposed Rule 1.05(a) regarding confidential information. Watkins agreed that this is a huge issue under the current rules and explained that defining information that is “generally known by the public” and “readily available” will be a moving target as technology continues to develop.
  • Tom Rayfield of McAllen said he sometimes represents attorneys before grievance entities and asked if there had been discussion about changes to Rule 8.04(a)(3) regarding misconduct. Rayfield called the rule a “catch-all” for grievances and suggested it be clarified. Watkins told him that the group had not considered changing the rule and that it was left as it is on purpose. Rayfield also suggested that in regard to Rule 1.13, Prohibition of Sexual Relations with a Client, it might be appropriate for there to be a definition regarding attorney/client relationship. Watkins agreed it might be difficult to define but guaranteed that juries can identify when the relationship began. Peterson referred to comments 3 and 4 of proposed Rule 1.17, Prospective Clients, suggesting that there has to be good-faith discussion about representation with respect to a particular matter before the relationship commences. 

Immediate Past President of the State Bar of Texas Roland Johnson thanked those who attended for their participation and encouraged further comments be posted to the State Bar blog, emailed to rcantu@texasbar.com, or sent c/o Ray Cantu, State Bar of Texas, P.O. Box 12487, Austin 78711.

For details on the proposed amendments, please visit www.texasbar.com/rulesupdate

Public education hearing: Corpus Christi, Sept. 7

In spite of high winds and rain, more than 40 people attended the public-education hearing in Corpus Christi on Tuesday. Tom Watkins of Austin presented an overview of the proposed rules and covered some of the rules that have generated discussion. Kennon Peterson and immediate past president Roland Johnson were on hand to facilitate the discussion and Supreme Court Justice Paul Green and State Bar director Pat Wolter were also in attendance.

Click here to listen to an audio recording of the hearing

Some of the comments/questions from the hearing included:

  • William “Bill” Edwards of The Edwards Firm in Corpus Christi expressed concern regarding the prescribed process for obtaining a client’s informed consent “confirmed in writing.” In the rules there are several references to “confirmed in writing” – some of them indicate that the client should provide confirmation in writing and others do not. Edwards noted that the definition of “confirmed in writing” in Rule 1.00(f) does not  require that the client respond to a lawyer’s written confirmation of a client’s oral informed consent. Tom Watkins agreed but said the better practice is to obtain a response from the client.  Edwards suggested requiring a response, and perhaps even a signature, from the client each time written confirmation of informed consent is required. Edwards also expressed concern about proposed Rule 1.08(g)(2) regarding arbitration. He went through a series of questions regarding the American Arbitration Association before concluding that no one can give informed consent about arbitration if they do not know what it means.

    Edwards also suggested that Rule 3.05 ought to stay the way it is and that the disciplinary rules ought to not be changed to contradict a recent Professional Ethics Committee opinion that disallowed communications between administrative lawyers and tribunals that will make decisions involving the matter that is the subject of the communication.  Watkins described this as a hot-button issue and suggested that it is not as clear cut as either side makes it out to be.  He indicated that administrative lawyers need to be able to communicate in order to obtain information they need to file applications but that there also has to be sufficient protection of the public.
  • Nancy DeLong, a lawyer with Texas RioGrand Legal Aid, said that some of the rules water down protection of clients.  She agreed with Edwards’ concerns regarding proposed Rule 3.05, adding that it is “bad for the little people.” She also commented that taking “preferably in writing” out of proposed Rule 1.04 was offensive. Kennon Peterson explained that the preference, which is not an enforceable mandate, was moved to comment 3 for proposed Rule 1.04.  She indicated that the change is not intended to make the preference any less important.

    After noting that her clients  have told her about prior lawyers attempting to engage in inappropriate sexual relations with them, DeLong said that sexual relations between lawyers and clients need to be prohibited in proposed Rule 1.13.

    DeLong also commented that the proposed conflicts standards might make it easier for lawyers to get around conflicts prohibitions and that with current technology, an argument can be made for more stringent conflicts rules.
  • John Gsanger, also of The Edwards Firm, suggested that Rule 1.08(g)(2) starts out on the right track by requiring a client to have independent legal counsel when a lawyer makes an agreement with the client that requires a dispute between the lawyer and client to be referred to binding arbitration.  But he said the second half, which requires the lawyer to make certain disclosures but does not require independent legal counsel for the client, “totally castrates the first half.” He suggested eliminating the second half or requiring additional disclosures to the client  and the client’s signature  on a writing conveying that the client understands all rights the client is giving up.
  • Brad Condit, a solo practitioner in Corpus Christi, commented on proposed Rule 1.06.  He suggested allowing an electronic recording of communications to satisfy the “confirmed in writing” standard. He also suggested that the proposed rules should include standards limiting a lawyer’s ability to choose where a suit will be litigated.
  • Brian Miller, of Royston Rayzor Vickery & Williams, said he was “pleasantly satisfied” with some of the compromises in the proposed rules. Regarding proposed Rule 3.05 he indicated that a balance was struck between the adjudicated rove versus the administrative reality. He recognized the hard question to be answered regarding proper lobbying versus ex parte communications. Regarding proposed Rule 1.08(g)(2), Miller expressed concern about  binding arbitration agreements in personal injury cases but suggested they are appropriate in other cases without the involvement of independent legal counsel.

The hearing ended with Roland Johnson reminding people to contribute comments on the blog or via email to rcantu@texasbar.com.

For details on the proposed amendments, please visit www.texasbar.com/rulesupdate

Public education hearing: Dallas, Sept. 3

A full house was in attendance at the fifth of nine public education hearings held at the Belo Mansion in Dallas. After a 30-minute presentation by Supreme Court Rules Attorney Kennon Peterson highlighting the proposed changes in the rules, the floor was opened to comments. While initial comments were limited to five minutes, the time constraints were suspended to ensure that questions were addressed and that comments were adequately expressed. Click here to listen to an audio recording of the hearing.

A sample of some of the comments from the hearing:

Linda Turley, a lawyer with a six-person firm in Dallas, expressed concern with proposed DR 1.15 regarding safekeeping of property. She said she was alarmed that the rule “has the effect of making substantive law changes,” which should not be the purpose of disciplinary rules. According to Turley, the rule would adversely impact clients in healthcare subrogation cases and should be reconsidered.

Judge Staci Williams expressed concern with proposed Rule 1.13 and urged that a per se rule be adopted. Judge Williams had looked at rules from other states and supported a clear rule that makes it perfectly clear what is ethical. She also suggested that other professions that have close relationships with clients have already adopted this more strident prohibition. At a minimum, she urged that a definition of “sexual relations” be added to the proposed rule.  One individual in the audience encouraged caution as implementation of this kind of rule might open more lawyers up to extortion from past clients. He acknowledged that there are two extremes and that he did not know the answer.

Cindy Solls, a Dallas lawyer/mediator, expressed concern that the rules did not directly address mediation. She was concerned that especially proposed Rule 1.08, the “aggregate settlement” proposed rule, might not be workable in a mediation setting.

Michelle Wong Krause, who said she had done numerous workers’ compensation cases, expressed concern with Rule 3.05 and said that it is common practice for administrative lawyers have discussed policies and procedures with Administrative Law Judges along the way. She suggested that perhaps defining “matter” to apply to particular cases might make the proposed rule more palatable.

• Questions also arose regarding proposed rule 1.05 regarding information that is confidential and that which is generally available to the public. Another lawyer suggested that proposed rule 1.04 changing “unconscionable” to “clearly excessive” might open lawyers up to more risk. He described “unconscionable” as morally appropriate versus “clearly excessive” as quantitative.

The public education hearings will continue next week in Corpus Christi, McAllen, San Antonio, and Austin. Click here for the complete schedule with dates and locations and click here for details on the proposed changes.

Public education hearing: Tyler, Sept. 2

The fourth of nine public education hearings on proposed changes to the Texas Disciplinary Rules of Professional took place Sept. 2 in Tyler at Traditions restaurant. About 20 people attended, most of them lawyers. Click here to listen to a recording of the hearing.

The hearing began with introductions by State Bar of Texas President Terry Tottenham and moderator Roland Johnson, immediate past president of the State Bar. Tom Watkins, who chaired the committee that oversaw drafting of the rules, then gave a presentation that detailed several of the proposed changes. He emphasized that the proposed changes would bring Texas disciplinary rules in line with those in other states, which is important, he said, because of a growing trend toward multistate practice. He also pointed out that the proposed rules would provide more guidance to attorneys facing potentially touchy questions by giving more clear direction on how to handle potential conflicts (for example, in representing multiple parties or entities under Rule 1.07). Watkins said that by providing additional direction for attorneys the proposed rules would also provide much stronger protections for clients because the proposed rules are clearer about how attorneys must obtain informed consent on potential conflicts.

While none of the attendees signed up to provide formal public testimony, Watkins’ presentation did generate discussion:

  • An attendee said he thinks it is helpful that the proposed rules better address representation of multiple parties.
  • Tyler attorney Rick Wilbanks observed that it seems the rules are moving away from the old adage that attorneys should “avoid even the appearance of impropriety” and instead are carving out exceptions which allow attorneys to do things that might appear unethical. Tom Watkins agreed that over the years the “appearance of impropriety” standard has been removed from the rules, but said that rather than allowing unethical behavior the rules are much stronger and more refined. Proposed amendments, Watkins said, remove a lot of the “middle ground” which can lead to uncertainty and thus to problems.
  • Beau Sinclair, also an attorney in Tyler, asked how well the proposed amendments balance public and lawyer interests and uniformity, which Watson had described during his introduction. Watkins said he could not measure the degree of balance, but that he feels there is much more of an emphasis on uniformity, more public protection in terms of informed consent, and more ways for lawyers to protect themselves where there is no way under the current rules.

Also attending the hearing were Texas Supreme Court Justice Dale Wainwright, Commission for Lawyer Discipline member and former State Bar President Guy Harrison, and State Bar District 2 director Ricky Richards.

Public hearings will continue this week and next in Dallas, Corpus Christi, McAllen, San Antonio, and Austin. Attorneys who attend will receive one-half hour of ethics MCLE credit. Click here to comment on the proposed amendments and click here for details on the proposals and the process

Public education hearing delivers lively exchange in Houston

A lively and fast-paced Q&A occurred in a packed room Wednesday in Houston, on the third day of public education hearings on proposed rules changes.

Click here to listen to an audio recording of the hearing.

The comments portion launched with a reference to "amorous relations." Said one young lawyer, "I don't do it, but I don't think others should have a ban imposed by the Bar." He said he believes there are enough existing rules to dissuade lawyers from thinking that sex with clients is an acceptable practice. Offered another lawyer, "Most lawyers would already agree that sex with clients will get you into trouble either civilly or criminally."

Chuck Herring from Austin took issue with a plethora of proposed changes, including criticism that a cost-benefit analysis on implementation and enforcement was lacking; potential impact on firms regarding contract lawyers' access to confidential information; an ommission of prohibition on "reasonable expenses" in addition to fees in the "no sex with clients" rule; and that Rule 1.06 does not prohibit "conflicted representation -- again a departure from the ABA."

Houston solo Jimmy Brill pondered that if a judge reverses fees that a lawyer reasonably believes are not excessive, would the lawyer then be subject to discipline? And, "As a solo, if a firm hires me and I give up confidential information on my clients, am I subject to discipline?" Regarding Rule 1.17 and the issue of uniformity, he said, "Clients are not commodities that can be bought and sold."

Echoed another lawyer on "excessive" fees, "I have a problem with a judge slashing what I believe to be reasonable fees, and then having a client coming back and suing me."

Pat Chamblin from Beaumont, who served on the committee that studied and drafted the proposed changes, said the committee attempted to bring the standard to middle ground and that there may be case authority that addresses the issue.

An environmental law solo took issue with Rule 3.05 -- impartiality of a tribunal on "matters pending." "I oppose the change. Applicants for permits should know upfront who the decision makers are going to be and have assurance that their advocates can approach the tribunal. Access is critical."

A lawyer from the city attorney's office took issue with Rule 1.05 and disclosure of confidential information, saying the rules are about what is moral and ethical, and that the proposed rule doesn't serve the public or lawyers. He also believes "substantial" need not precede "bodily injury" because a lawyer has an obligation to disclose information if she has reason to believe that a threat of bodily injury in any way exists.

Concern regarding "informed consent" prompted a remark that this rule could lead to disincentive to take new cases, as clients dissatisfied with settlements could rush to file a grievance.

State Bar board members and section reps from southeast Texas in attendance included Warren Cole, Greg Dykeman, Damon Edwards, Stewart Gagnon, L. Bradley Hancock, Tommy Proctor, Barrett Reasoner and Travis Sales.

A question was posed as to "whether a referendum might not actually take place." Roland Johnson, serving as moderator, responded with an overview of the process and explained that the court will determine the terms and conditions after the Bar makes its report to the Texas Supreme Court by Oct. 6, and that a referendum is likely later this year or early next year.

To comment on the proposed changes, click here or email ray.cantu@texasbar.com

For details on the proposed amendments, please visit www.texasbar.com/rulesupdate.