More than 80 people attended the ninth and final hearing on proposed disciplinary rules changes on Sept. 10 in Austin.
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 firstname.lastname@example.org.
For details on the proposed amendments, please visit www.texasbar.com/rulesupdate.