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 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.