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