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