Houston Mayor Annise Parker proclaimed May 3, 2011 as James B. Sales Day in honor of the former State Bar of Texas president and Texas Access to Justice Commission chair. During a presentation ceremony in Houston, former State Bar President Wayne Fisher said he had never known anybody with as much integrity as Jim Sales. Shauna Johnson Clark, partner-in-charge of the Houston office of Fulbright & Jaworski L.L.P., said Sales innately understands that to whom much is given, much is expected. State Bar President Terry Tottenham praised Sales for his accomplishments, including his efforts to promote professionalism among lawyers, implement Texas' IOLTA program, and bolster services to lawyers suffering from substance abuse and mental health issues. Tottenham noted especially Sales' role as chair of the ATJ Commission, during which he helped secure $20 million to help fund legal services to the poor. The Commission's current chair, Harry Reasoner, said Sales had given selflessly and worked hard not for his glory but to ensure justice for all. Sales thanked the mayor and council, his friends and family, and all the "legendary lawyers who set the standard of giving back your time and talent."
Despite the best intentions and tireless efforts of veterans groups and social services providers, too many of our service members cannot find or afford the help that they need and that they deserve. Lawyers’ expertise in the law can be a lifeline. This issue of the Texas Bar Journal focuses on State Bar President Terry Tottenham’s initiative to help our veterans, Texas Lawyers for Texas Veterans.
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.”
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 firstname.lastname@example.org 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 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.