An Unlawful Referendum

 Posted on January 19, 2011 in Uncategorized

The State Bar of Texas is conducting an unlawful referendum on amendments to the Texas Disciplinary Rules of Professional Conduct. Any rules that pass the referendum will be subject to years of litigation; even if they are ultimately upheld by the courts, they will still be illegitimate.

Here, from the Texas Government Code, is the statute governing the referendum:

§ 81.024. RULES. (a) The supreme court shall promulgate the rules governing the state bar. The rules may be amended as provided by this section. (b) The supreme court may, either as it considers necessary, pursuant to a resolution of the board of directors of the state bar, or pursuant to a petition signed by at least 10 percent of the registered members of the state bar, prepare, propose, and adopt rules or amendments to rules for the operation, maintenance, and conduct of the state bar and the discipline of its members. (c) When the supreme court has prepared and proposed rules or amendments to rules under this section, the court shall distribute a copy of each proposed rule or amendment in ballot form to each registered member of the state bar for a vote. (d) At the end of the 30-day period following the date the ballots are distributed, the court shall count the returned ballots. (e) The supreme court shall promulgate each rule and amendment that receives a majority of the votes cast in an election. The rule or amendment takes effect immediately on promulgation by the court. (f) The vote shall be open to inspection by any member of the bar or the public. (g) A rule may not be promulgated unless it has been approved by the members of the state bar in the manner provided by this section.

"The court shall distribute a copy of each proposed rule or amendment in ballot form to each registered voter for a vote."Each proposed rule... a vote. The statute calls for a vote on each proposed rule, not on "all proposed rules," nor on "six inexplicable agglomerations of proposed rules," either of which the Legislature could have written if it had wanted the ballot in the form the State Bar uses. The ballot form for the referendum does not comply with section 81.024(c) of the Texas Government Code.

Who is responsible? The Supreme Court of Texas ordered the form of the ballot, but it did it so as requested by the State Bar of Texas. From the order:

The Board also petitioned the Court to submit the proposed rules to State Bar members for a referendum between January 15 and February 14,2011, by electronically transmitted and paper ballots in a form attached to the petition.

So the State Bar asked the Supreme Court to order a referendum based on a ballot that violates the Government Code. The buck stops with the State Bar.

Does the Supreme Court's order provide the State Bar with cover for its incompetence or guile? No. In the order the Supreme Court washes its hands of the State Bar's decisions: "The Court's approval of this referendum is not a predetermination of any legal issues regarding the proposed rules." The issue of the form of the ballot not having been raised before the Supreme Court, the Supreme Court did not rule on the legality of the form. The field is wide-open for litigation, probably in the form of a declaratory-judgment action by someone aggrieved by the passage of some amendment.

Is it incompetence or guile? If the State Bar doesn't get what it wants-if some of the rules pass, but not the rest-some fan of the State Bar could file a declaratory judgment action asking that the whole election be thrown out. Or someone aggrieved by the rules that did pass could file a dec action-which possibility makes me think that incompetence, and not guile, is behind the State Bar's ballot form.

Maybe "incompetence" is too strong; maybe "error" is fairer. It took me a whole seven days of thinking about the referendum to notice that the ballot was defective. There's no reason the State Bar's committee should have realized that the statute actually requires a vote on each issue-they only had seven years.

I've been wondering about the arrangement of the rules into six questions. There is no obvious sense to it:

A. Terminology, Competent and Diligent Representation, Scope of Representation and Allocation of Authority, Communication, Fees, Confidentiality, Safekeeping Property, and Declining or Terminating Representation;B. Conflicts of Interest: Multiple Clients in the Same Matter;C. Other Conflicts of Interest;D. Prohibited Sexual Relations, Diminished Capacity, and Prospective Clients;E. Advocate, Law Firms and Associations, Public Service, and Maintaining the Integrity ofthe Profession; andF. Counselor, Non-Client Relationship, Information About Legal Services, and Severability of Rules.

I suspect that they were grouped thus so that the most controversial propositions ("prospective clients," "safekeeping property" for example) were padded by more benign rules ("terminology," "diminished capacity). It would have made much more sense, and been lawful, to allow Texas lawyers to vote on each amendment separately. But someone at the State Bar undoubtedly thinks himself very clever for grouping these rules this way.

As a result of this cleverness, we're having a manipulative referendum that, even if the courts uphold it, every lawyer in Texas who can read the statute will recognize as illegitimate.

It would have been far cleverer to just RTFM.