The Texas Supreme Court has published proposed amendments to the Texas Disciplinary Rules of Professional Conduct ("Texas Rules"). A referendum vote on these proposals likely will be set for later this year or early next year. They would create a substantially new set of professional standards that would affect the law practice of every Texas lawyer and his or her relationship with clients. We encourage you to read these proposals and to provide comments on them to the State Bar Board and to the Texas Supreme Court (through its Rules Attorney, Kennon Peterson (kennon.peterson@courts.state.tx.us). The purpose of this blog is to discuss some of the key issues raised by these proposed changes. The views expressed in this blog are our own and not on behalf of any other person or entity.
Special One Hour Ethics Presentation – Free through January 29, 2011
Proposed Disciplinary Rules Amendments:
Analysis, Selected Issues and Problems
Featuring: Amon Burton, Charles Herring, Jr., and Jim McCormack
Analysis and discussion of selected issues and problems with the proposed amendments to the Texas Disciplinary Rules of Professional Conduct being voted on by State Bar of Texas members.
To enroll go to www.utcle.org
TX MCLE Credit Hours: 1.00 hrs/1.00 hrs ethics
This course will be available free through January 29, 2011 and again from February 2, 2011 through February 18, 2011. Between January 30, 2011 and February 1, 2011 the cost will be $35.
For any questions please email BarRulesCommentary@gmail.com.
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In the past, I have served as an elected Bar Director (Dist. 9 – Austin); I have been an ex officio member of the Dist. 9 Grievance Committee; and I served as the Chairman of the SBOT Consumer Law Section—elected by the Consumer Law Section Council. For over 40 years I have supported State Bar activities, CLE, Pro Bono Programs and, when necessary—even dues increases. However, in the instance of the current disciplinary rules referendum, I must urge you to vote “No.”
In my view, the changes would cause far more problems than they would solve. To give just one example that I haven’t seen mentioned yet:
The current Texas rule regarding “Fees” prohibits “illegal or unconscionable fees.” See Rule 1.04(a).
Indeed, “unconscionable” fees have been actionable by Texas consumers of legal services for the past 30 years. See DeBakey v. Staggs, 605 S.W.2d 631, 634 (Tex.Civ.App.—Houston [1st Dist.] 1980), writ ref’d n.r.e. per curiami, 612 S.W. 2d 924 (Tex. 1981).
The State Bar Proposal sponsors a new standard:
“A fee is clearly excessive when, after a review of the facts, a reasonable lawyer would be left with a firm belief or conviction that the fee is in excess of a reasonable fee.”
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Proposed Rule 1.07: The Nonexistent “Safe Harbor”
On January 13, the State Bar sent out an email of “Q&A with Tom Watkins” discussing the proposed disciplinary rules that Texas lawyers begin voting on this coming Tuesday. The email contains dramatic misstatements concerning proposed Rule 1.07. It also shows just how poorly drafted proposed Rule 1.07 is and how garbled the Bar’s explanations have become in attempting to justify these rules.
In short, the relevant statement claims that the disclosures required under Rule 1.07 create a “safe harbor” for lawyers. That is simply incorrect.
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We recommend a “No” vote on the entire referendum for the proposed amendments to the Disciplinary Rules. After reviewing the proposals over several months, we have concluded that the current draft is too flawed to merit support. Voting starts on Tuesday, January 18th. Some of the reasons for our recommendation are:
- The proposals are seriously flawed, but they will dramatically affect Texas law practice—case-acceptance standards, attorney-client contract forms, conflicts of interest standards, disqualification, fees, billing, confidential client information, and on and on. These are critical components of Texas law practice.
- Some proponents of the changes have said that lawyers need to support these new rules “because we’ve been working on them for 7 years.” If a meal turns out to be inedible, no one eats it simply because it took a long time to cook. One reason for the current problems in these proposals is the troubled drafting process. The State Bar committee and the Task Force disagreed intensely on various rule proposals. The current draft resulted from mediation sessions, and parts of the compromise version still don’t fit with one another. The Bar Board asked the Supreme Court for more time to address the conflict of interest rules, but the Court refused to grant that extension.
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This message is the tenth in a series that addresses proposed amendments to the Texas Disciplinary Rules of Professional Conduct. This message discusses proposed Rule 1.08(g)(2), the rule on binding-arbitration provisions in attorney-client contracts. Proposed Rule 1.08(g)(2) provides:
A lawyer shall not…make an agreement with a client that requires a dispute between the lawyer and client to be referred to binding arbitration unless either: (i) the client is represented by independent legal counsel in making the agreement; or (ii) the lawyer discloses to the client, in a manner that reasonably can be understood by the client, the scope of the issues to be arbitrated, the fact that the client will waive a trial before a judge or jury on these issues, and that the rights of appeal may be limited…
In one sense, this proposed rule is a compromise: It imposes certain disclosure obligations, but omits other obvious and material disclosures that an independent lawyer providing objective advice would likely provide to a client considering whether to agree to a binding-arbitration provision. [click to continue…]
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As noted previously, on Friday, October 1st, the State Bar Board of Directors met and voted to recommend adoption of certain proposed amendments to the disciplinary rules and interpretive comments—but notably did not approve the proposed changes to the conflict of interest rules: Rules 1.06, 1.07, 1.08, and 1.09. The follow-up email message that the Bar sent out on October 3rd stated that the Board asked that the Texas Supreme Court allow the Bar to make a recommendation on those particular rules at the Board’s January 28, 2011 meeting.
However, on October 7th, the State Bar posted on its website a notice stating that instead of granting the delay until the January 28th Board meeting, as the Bar Board had asked, the Texas Supreme Court has instructed the Board to report to the Court by November 8th. Chief Justice Jefferson’s October 6th letter to Bar President Tottenham also commented that “if the extended commend period reveals legitimate concerns that require further study, both the State Bar Board and Court will need to dedicate whatever time is necessary to reach a consensus before the referendum proceeds.” [click to continue…]
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On Friday, October 1st, the State Bar Board of Directors met and voted to recommend adoption of certain proposed amendments to the disciplinary rules and interpretive comments–but notably did not approve the proposed changes to the conflicts-of-interest rules: Rules 1.06, 1.07, 1.08, and 1.09. The follow-up email message that the Bar sent out on October 3rd stated that the Board asked that the Texas Supreme Court [click to continue…]
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A Note From Our Friends: Vote No! Lawyers and Clients Will Benefit
January 23, 2011
Voter Beware! The proposed amendments to the Texas Disciplinary Rules would harm both lawyers and clients. Additionally, these proposals fail miserably at achieving the drafters’ stated goals of better protecting the public, providing clearer and fairer guidance to lawyers, and being more consistent with current practices and national standards.
Despite claims to the contrary, the proponents cannot demonstrate just how the proposed amendments satisfy the stated goals. However, we will provide the following examples of how the proposed amendments make a mockery of the stated goals and will poorly serve lawyers, clients, and the legal profession as a whole.
[click to continue…]
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