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.

San Antonio lawyer, law student honored at luncheon

State Bar of Texas President Roland Johnson and President-elect Terry Tottenham visited the San Antonio Bar Association (SABA) luncheon today. SABA lawyers are actively involved in mentoring young lawyers, providing legal services to the poor, and helping local military personnel.

In addition to a CLE presentation by United States Circuit Judge Edward C. Prado, two special awards were given during today's luncheon.

Every year, the San Antonio Bar President recognizes one bar member who has gone above and beyond in service to the bar with the President's Award. This year's recipient is Carl Werner. Werner used his expertise on probate, wills, and estates to incorporate a wills clinic into the bar's Community Justice Program. His energy extended to recruiting and mentoring volunteers to the extent that in 2011, a wills clinic will be offered monthly.

For the first time, AT&T presented the First Annual AT&T Excellence in Pro Bono Award. AT&T has played an instrumental role in supporting the pro bono efforts in San Antonio. As the Community Justice Program continues to grow and the number of volunteers increases, the administrative workload becomes mountainous. The new award established AT&T will offer a St. Mary's law student a scholarship in return for working five hours a week for the Community Justice Program.

The first recipient of the AT&T Excellence in Pro Bono Award is Kimbell Ward. Ward, a 2L law student, was chosen because of her high class ranking, a highly complimentary letter from a mentor, and her passionate essay about the importance of pro bono efforts. In addition to her volunteer efforts at Texas RioGrande Legal Aid and Catholic Charities Call-a-Lawyer, Ward has served as president of the St. Mary's Criminal Defense Law Bar. It would be remiss not to mention that Ward is also a mother of two. Texas lawyers can expect great work from future lawyer Kimbell Ward.