Referendum 2011: Q&A with Tom Watkins

State Bar members will begin voting on proposed changes to the Texas disciplinary rules on Tuesday, January 18. Below is an interview with Thomas H. Watkins, who served as chair of the Supreme Court of Texas Task Force on the Texas Disciplinary Rules of Professional Conduct. 

Q: How did you become an authority on the Texas disciplinary rules?
A: The Supreme Court of Texas called and asked if I would chair the Task Force on the Texas Disciplinary Rules of Professional Conduct. I puffed up like a toad. I was so proud. It wasn’t until seven years later that I realized this is what a Republican Supreme Court does to punish a Democrat.

Q: What is the most frustrating criticism of the proposed rules?
A: There have been a number of criticisms based on misunderstanding. For example, the proposed “No sex with clients” rule. Several have complained that it doesn’t go as far as the American Bar Association model rule. In fact, it’s almost exactly the same. If anything, it’s stronger.

Q: What is the most compelling argument for adopting the proposed amendments?
A: First, there are areas in the disciplinary rules where we need more uniformity. Second, there are areas where we need better protection for lawyers. Third, there are areas where we need better protection for clients.

Q: Have lawyers and the public had enough opportunity to provide input?
A: There have been plenty of opportunities. The truth is that lawyers have very busy schedules and are driven by client needs. You have to take time out of a busy schedule to study and consider the proposed rules. Of course, that’s true of the old rules, too.

Q: Are there surprises in the rules?
A: Every change — every current rule, for that matter — is a surprise to some. Some think the multiple-client representation rule is burdensome. In fact, it’s not as burdensome as the current rule, which is ignored. The new rules are useable. The current rules are not useable.

Q: Why is the ballot divided into six questions?
A: There are various issues for various segments of the bar membership.

Q: Which are the easiest ballot questions to vote “Yes” on?
A: All of them are easy to vote “Yes” on. The most misunderstood proposals are the conflicts of interest rules. Most misread proposed Rules 1.06 and 1.07. Proposed Rule 1.06 removes the “substantially related matter” test. Some want to keep it. Personally, I don’t understand that. They want to be able to sue and defend the same client. I think that’s bad PR for us as a profession. The “substantially related matter” test is not recognized in federal courts or the ABA Model Rules. If we’re striving for uniformity, we need to fix that.

Q: Why are proposed Rules 1.06 and 1.07 separate?

A: Proposed Rules 1.06 and 1.07 are essentially covered by 1.06 in the current rules. Some don’t like having an extra rule. I believe strongly that we need it. If you are ever sued for malpractice, the disclosures required under current Rule 1.06(c)(2) will haunt you. There’s no way you could have complied. Proposed Rule 1.07 eliminates that. The disclosures under the current rule are replaced with three important disclosures that create a safe harbor. The tradeoff is that you have to make the disclosures every time, but there’s a safe harbor. You’d be better off than under the current system. I think that’s a good tradeoff.

Q: Are the comments and criticisms that have circulated about the proposed rules fair?

A: Lots of groups and individuals have provided input. That has been an essential part of this process. The proposed rules have changed from one draft to the next. The instances where those criticisms have not been adopted have been because of counter opinions and compromises. If you try to design a horse by committee you’re going to get a camel. The proposed rules are a camel. But they can’t be accused simultaneously of being not enough like the ABA Model Rules and changing too much. If we adopted the ABA rules, it would require far more changes.

Q: What happens if the proposed rules don’t pass?

A: We’re stuck with what we’ve got. We’ll be a national embarrassment on the “No sex with clients” rule. A whole lot of work will go down the tubes.

Q: If a member of the State Bar is just tuning in now, what’s the best way to get up to speed on the proposed changes in order to make an informed decision?
A: There will be plenty of presentations at CLE programs. Of course, not every lawyer will be interested in or affected by all of the disciplinary rules. There are various practices that are not covered by all of the disciplinary rules. In my opinion, Texas lawyers know a whole lot more about the disciplinary rules because of the attempts to change them. If they fail, a lot of good education has taken place. If they pass, it will improve how lawyers comply. Lawyers will start off with better knowledge of the new rules than they have of the current rules.

Q: Any final thoughts?
A: As with any legislative act, any court decision, or any public endeavor that you begin to scrutinize, it’s easy to pick out portions and say, “They don’t do that right.” But you have to pay attention to the compromises that were necessary to move forward. There are provisions in the original U.S. Constitution we find objectionable today. Everyone says, “That’s wrong.” But were they worth it if otherwise we didn’t get a country? I hope Texas lawyers will recognize other views in order to achieve much-needed changes.

Thomas H. Watkins is a partner in Brown McCarroll, L.L.P. in Austin. A graduate of the University of Texas School of Law, he is a member of the American College of Trial Lawyers and the American Board of Trial Advocates. A frequent speaker at CLE seminars, Watkins has served on the Texas Commission for Lawyer Discipline and as chair of the Texas Board of Disciplinary Appeals.


For more information about Referendum 2011, including A Guide to the Issues [PDF] and Commentary from Members of the State Bar TDRPC Committee on Specific Rules [PDF], please visit www.texasbar.com/rulesupdate

Court orders referendum on disciplinary rules



The Supreme Court of Texas has ordered a referendum of Texas lawyers on proposed amendments to the Texas Disciplinary Rules of Professional Conduct. The referendum will take place between January 18 and February 17, 2011. State Bar members will have the option of voting online or by paper ballot. 

The proposed Rules and interpretive comments will be published in the December issue of the Texas Bar Journal. Lawyers will vote only on the proposed Rules, not the interpretive comments.  

Click here for the Court's order.

Click here for the referendum ballot.

Click here for Exhibit A (the proposed Rules and interpretive comments) [large file].

Click here for Exhibit B (a redlined version of the proposed changes) [large file].

For more information on the process leading to the referendum, visit texasbar.com/rulesupdate or email rcantu@texasbar.com.

 

State Bar petitions Supreme Court for referendum on disciplinary rules

On Friday, Nov. 5, 2010, the State Bar of Texas Board of Directors approved final recommendations to the Supreme Court of Texas regarding proposed amendments to the Texas Disciplinary Rules of Professional Conduct (TDRPC). The Board voted 35 to 1 to approve the recommendations of its Discipline and Client-Attorney Assistance Program Committee regarding proposed Rules 1.06–1.09, which concern conflicts of interest. By a separate 35 to 1 vote, the Board requested that the Court authorize the State Bar to conduct a referendum of Texas lawyers on all of the proposed TDRPC amendments.

See the links below for details (files are in PDF format): 

Petition for referendum (filed Nov. 8)

Final proposed TDRPC amendments, including comments

Proposed referendum ballot

Proposed referendum timeline

The Board is committed to ensuring that all members are educated about the proposed Rules and the effect they would have on lawyers and the clients they serve. For more information on the process leading to the recommendations, visit texasbar.com/rulesupdate or email rcantu@texasbar.com.

Conflicts rules discussed at Dallas meeting

On Wednesday, October 20, the State Bar of Texas Board Disciplinary Client Attorney Assistance Program (DCAAP) Committee held a public meeting at the Belo Mansion in Dallas to hear input on proposed amendments to four disciplinary rules concerning conflicts of interest (proposed Rules 1.06, 1.07, 1.08, and 1.09). Between 35 and 40 people attended. The full board will meet November 5 in Austin to finalize recommendations to the Supreme Court of Texas regarding these rules.

Click here for an MP3 audio recording of the meeting

Several members of the DCAAP Committee and State Bar Texas Disciplinary Rules of Professional Conduct Committee were present. State Bar immediate past president Roland Johnson moderated the meeting, and current president Terry Tottenham and president-elect Bob Black also attended. Supreme Court of Texas rules attorney Kennon Peterson represented the Supreme Court of Texas.

Tom Watkins, who chaired the committee that oversaw drafting of the rules, gave a presentation on the conflicts rules and how they compare to the ABA Model Rules and rules adopted by other states. “A lot of people put a lot of thought into [the proposed rules] and there are a lot of compromises,” Watkins said. “If you want to change something you have to decide whether you are trying to protect the public or protect the lawyer, and then you have to balance the ABA Model Rules. I personally think these changes are worthwhile.”

The committee then heard input from general counsel of several large Texas firms, each of whom indicated they were speaking on their own behalf and not their firms. Below is a sample of their remarks: 

  • Stacey Brainin of Haynes and Boone, LLP, in Dallas said she and a working group of attorneys from several large firms recommend eliminating proposed Rule 1.07 and incorporate it into the comments of Rule 1.06. She said the rule will generate confusion because it creates a “radical departure” from existing Texas rules and ABA Model Rules and will create confusion and uncertainty. If 1.07 is removed, Brainin suggested adding a rule on imputed conflicts of interest in its place, consistent with ABA Model Rule 1.10. She also expressed concern with the “reasonable belief” standard in 1.07 because she feels it would be difficult to apply and could invite lawsuits later regarding whether something was reasonable.
  • Gary Gurwitz of Atlas & Hall, L.L.P. in McAllen said he believes proposed Rule 1.07 is a “critical rule.” He supports a previous version of Rule 1.07 proposed by the Texas Disciplinary Rules of Professional Conduct Committee that he said takes the existing rule, which he considers ambiguous, and spells out the exact disclosures an attorney must make to receive informed consent. “You cannot over-disclose,” he said. “These disclosures must be made.”
  • Robert G. Newman of Fulbright & Jaworksi L.L.P. in San Antonio said he disagrees with the removal of the “substantially related matter” standard in proposed Rule 1.06. He said this is not needed because there are few instances of lawyers suing their clients, and there is 20 years of jurisprudence on the existing rule and exceptions to it. “We will now go through 20 years of litigation to come up with exceptions and modify this prohibition,” he said. Newman also commended the process for considering proposed amendments, calling it “a very civil discourse.”
  • Patrick R. Cowlishaw of Jackson Walker L.L.P. in Dallas also expressed concern about the “substantially related matter” standard in Rule 1.06. He said that firms have long understood that they can undertake a case for a second client if the matter is not substantially related, without losing the ability to represent one client if it is sued by the other. The removal of the test, he says, would cause lawyers to be much more restrictive about what matters they take on.
  • Lewis T. LeClair of McKool Smith, P.C. in Dallas provided input on proposed comments 4 and 5 to Rule 1.07. He believed language in those comments make the operation of the Rule unclear.

State Bar President Terry Tottenham closed the hearing by thanking attendees for participating in the “self-regulation of the profession.” “I appreciate everyone’s comments,” he said. “We are all in this together. We’re trying to come up with the best set of rules that apply to as many situations as possible. I appreciate you being here.”

Read the proposed conflicts rules here and a comparison chart with the existing, proposed, and ABA Model Rules, here.

Time remains to comment on proposed conflicts rules

Guest post by Terry O. Tottenham, State Bar of Texas President

The State Bar of Texas Board of Directors will meet on Friday, Nov. 5, at 10:30 a.m. at the Law Center in Austin, to finalize recommendations to the Supreme Court of Texas regarding proposed amendments to the Texas Disciplinary Rules of Professional Conduct. On Oct. 1, the Board made a recommendation to the Court, but qualified it with regard to four Rules concerning conflicts of interest (proposed Rules 1.06, 1.07, 1.08, and 1.09), asking for more time to understand potential issues regarding those Rules. Click here for a comparison of current TDRPC Rules 1.06-1.09, the applicable ABA Model Rules, and the proposed rules with the DCAAP Committee recommendations in red.

The Court agreed to give the State Bar until Nov. 5 to consider these issues further and until Nov. 8 to report back to the Court.

The State Bar of Texas needs to hear from you of any concerns or issues you might have regarding Rules 1.06-1.09 preferably with potential solutions also provided. Asking for an extension of the Court’s deadline was a serious decision that was not taken lightly by Directors. The State Bar will continue to accept information from Texas lawyers and the public about what changes, if any, might be recommended to the Court regarding the Conflicts of Interest proposed rules. To ensure that this input receive full consideration, I would ask you to provide feedback by Oct. 20. In addition to mail (State Bar of Texas, c/o Ray Cantu, P.O. Box 12487, Austin 78711) and email (rcantu@texasbar.com), the State Bar of Texas Board Disciplinary Client Attorney Assistance Program Committee has invited representatives of those who have expressed concerns with the conflicts rules to meet and discuss concerns on Wednesday, Oct. 20, 10:30 a.m. – noon at the Belo Mansion, 2101 Ross Ave., Dallas. If you have concerns or want to be part of that discussion, I encourage you to attend the meeting.

Those who want to recommend change are encouraged to provide alternate language to replace verbiage in the current proposed Rules. Many qualified lawyers have spent years reviewing these proposals, sifting through public comment and multiple committee ideas, to reach the compromises that have created the proposals that are now before us. In fact, proposed changes have been recommended following the State Bar public education hearings and comment period and are included in this draft of the proposed Rules with comments. Those recommended changes were achieved through thoughtful proposals brought to the table with clear “fixes” proposed, discussed, and accepted. We hope that this additional time will bring more understanding of these proposed Rules and if needed make them better for Texas lawyers and their clients.

Proposed disciplinary rules changes: Why these rules? Why now?

Guest post by Terry O. Tottenham, State Bar of Texas President

As you know, the State Bar of Texas has been reviewing proposed amendments to the Texas Disciplinary Rules of Professional Conduct. The Supreme Court of Texas asked the State Bar Board of Directors to make a final recommendation to the Court by October 6, 2010. On October 1, the Board made a recommendation, but qualified it with regard to four Rules concerning conflicts of interest (proposed Rules 1.06, 1.07, 1.08, and 1.09). The Board asked for more time to consider those Rules because members of the State Bar expressed concern that those particular Rules had not been fully considered. We are seeking additional input on those Rules only. The Board will meet in Austin on November 5 to make its final recommendation to the Court.

The Board wants to ensure that Texas lawyers understand what the proposed Rules say and what they don’t say. The Board is committed to sending to the Court for referendum the best work product possible with the greatest potential for acceptance into the daily practice of law. None of us is likely to agree with 100 percent of the proposed Rules, but it is important that we agree that the proposed Rules have been carefully reviewed and considered with the ultimate goal of producing the best set of Rules possible for State Bar members, the public, and the legal profession as a whole. As this process has evolved, I have heard from many of you.

I have frequently been asked, Why these Rules? Why now?

  • It has been 20 years since the Rules governing Texas lawyer ethics were updated on a comprehensive scale. Self-governance demands that we remain vigilant in ensuring that the Rules protect the public and promote professionalism.
  • The proposed Rules bring Texas into closer conformity with other states and with the American Bar Association (ABA) Model Rules of Professional Conduct. I say "closer," not "full," because: 1) Texas is never going to fall in lockstep with the ABA; 2) only one jurisdiction has adopted the Model Rules outright while all other jurisdictions that have adopted the Model Rules have made their own modifications; and 3) the ABA Model Rules were drafted with the luxury of not having to actually prosecute someone who has broken the Rules.
  • The proposed Rules add intent standards to help keep lawyers from getting into trouble for unintended violations of the Rules.
  • Technology has changed the practice of law in ways the existing Texas Rules did not anticipate. Texas lawyers, for example, did not use email when the 1990 Rules were adopted.
  • The proposed Rules also make it more difficult to use the Rules tactically to conflict another lawyer out of a representation while still protecting the interest of the client.

These are not all of the reasons the Board is recommending approval of the proposed amendments to the Court, but they are a good start. The proposed changes have been in the works for nearly eight years. Many outstanding lawyers have devoted countless hours to drafting and deliberating over these proposed Rules.

Over the next few weeks, I want to share with you how and why some of the proposed Rules were developed. The State Bar has been in listening mode. We believe it has been important to the process to collect information, listen to stakeholders, and weigh all concerns before making a recommendation to the Court. One place where there has been concern regarding the proposed Rules on conflicts of interest is whether the proposals make it easier or more difficult for lawyers to move laterally from one law firm to another and for law firms to merge. The Supreme Court of Texas has allowed the State Bar extra time to finalize its recommendation on the conflicts Rules. Please take time to study the existing Rules and the proposed amendments to those Rules. The State Bar wants to know what lawyers think and to ensure that these proposals have been fully vetted. If you want to suggest a change, please provide specific proposed language for any modifications you would like considered. Send your comments care of rcantu@texasbar.com by October 20. For more information about the proposed Rules, click here.

If, after the Board makes its final recommendation to the Court, the Court orders a referendum of all Texas lawyers, your State Bar will work hard to make sure that all members have the information they need to make an informed decision on the merits of the Rules. I hope that fear of change will not influence your opinion regarding the proposed Rules. Instead, in the spirit of self-regulation, I hope that you analyze the proposed Rules and make an independent determination about whether the proposed Rules, on the whole, are an improvement over the existing Rules.

Please be on the lookout for messages on specific Rules, including how proposed language in each Rule evolved and what the practical implications will be if adopted. I urge you to take time to study the proposed Rules and consider them with an open mind. Compare the proposed Rules with the existing Rules and ask yourself, Will these improve the practice of law in Texas? We owe it to the public, to the profession, and to ourselves to do what is right.

State Bar Board to hold special meeting on rules recommendations

The State Bar of Texas will hold a special meeting of its board of directors on Friday, Nov. 5, at 10:30am at the Law Center in Austin, to finalize recommendations to the Supreme Court of Texas regarding proposed amendments to the Texas Disciplinary Rules of Professional Conduct. On Oct. 1, the Board voted to recommend to the Court that the conflicts of interest rules, 1.06-1.09, be delayed for further consideration based on new concerns brought up the week of the meeting. In the attached letter from Chief Justice Wallace Jefferson, the Court agreed to give the State Bar until Nov. 5 to consider the issues further and until Nov. 8 to report back to the Court on those recommendations. Prior to November 5, the State Bar will seek out information regarding concerns and then consider any changes or additions to the proposed amendments to those rules. Both State Bar President Terry Tottenham and Chief Justice Jefferson point to the time and expertise that numerous lawyers have already put into the process. More information will be posted to the website as the process develops. If you have questions or concerns, email rcantu@texasbar.com.

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

Hearings continue this week on proposed amendments to the disciplinary rules

A series of public education hearings on proposed amendments to the Texas Disciplinary Rules of Professional Conduct began this week. Those interested in the proposed changes are encouraged to attend. Attorneys who attend will receive one-half hour of ethics MCLE credit. 

The Supreme Court of Texas has asked the State Bar of Texas Board of Directors to consider proposed amendments and provide recommendations or comments to the Court by Oct. 6, 2010. Read details on the proposed changes at www.texasbar.com/ethics and provide comments here.

The public education hearings will take place:

Lubbock – Monday, Aug. 30, Noon – 2 p.m.

Texas Tech University School of Law
Lanier Auditorium, Room 153
1802 Hartford Avenue
 
El Paso – Tuesday, Aug. 31, Noon – 2 p.m.

Commissioners Courtroom, 3rd Floor
500 E. San Antonio
 
Houston – Wednesday, Sept. 1, Noon – 2 p.m.
Hyatt Regency, Dogwood Room
1200 Louisiana Street
 
Tyler – Thursday, Sept. 2, Noon – 2 p.m.

Traditions
6205 S. Broadway Avenue
 
Dallas – Friday, Sept. 3, Noon – 2 p.m.
Dallas Bar Association
Belo Mansion, Winstead Ballroom
2101 Ross Avenue
 
Corpus Christi – Tuesday, Sept. 7, Noon – 2 p.m.
Town Club, 6th Floor
800 N. Shoreline Blvd.
 
McAllen – Wednesday, Sept. 8, Noon – 2 p.m.

Casa de Palmas Renaissance
101 N. Main Street
 
San Antonio – Thursday, Sept. 9, Noon – 2 p.m.
Bexar County Courthouse (Old Courthouse)
Presiding Courtroom, 2nd Floor
100 Dolorosa
 
Austin – Friday, Sept. 10, Noon – 2 p.m.
Texas Law Center
Hatton W. Sumners Conference Room
1414 Colorado Street

TexasBarCLE to offer free webcast on proposed changes to the Texas Disciplinary Rules of Professional Conduct

TexasBarCLE will be offering a free webcast on the proposed changes to the Texas Disciplinary Rules of Professional Conduct. The webcast will include a group of panelists and will focus mainly on discussing the proposed amendments, the process by which the proposed amendments were developed, and reasons the changes are needed.

Immediate past president of the State Bar of Texas, Roland Johnson, will serve as moderator for the webcast. Panelists will include Patricia Chamblin, chairwoman of the State Bar Disciplinary Rules of Professional Conduct Committee; Linda Eads, a past chairwoman of the State Bar’s disciplinary rules committee; Tom Watkins, chairman of the Texas Supreme Court task force on the disciplinary rules; and Kennon Peterson, the Texas Supreme Court’s rules attorney.

The live webcast is free and will be on Wednesday, August 18, from 10 a.m. to 12 p.m. The webcast is worth two hours of MCLE credit, including two hours of ethics credit. Register for the webcast for free on TexasBarCLE.com. To find out more about the proposed amendments, visit www.texasbar.com/rulesupdate.

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.