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.
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 firstname.lastname@example.org, 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