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