SBOT General Practice, Solos, and Small Firm Section: Vote “No.”

 Posted on January 18, 2011 in Uncategorized

From Brian Burris of the Council of the General Practice, Solos, and Small Firm Section of the State Bar of Texas, a voluntary section that "devotes its energies primarily to the interests of lawyres who practice as solos and in small firms:The Council of the General Practice, Solos, and Small Firm Section has voted overwhelmingly to recommend a "No" Vote on 4 of the 6 items on the disciplinary rules referendum. (According to the State Bar, 60% of Texas private practitioners are either solo practitioners or are in small firms (2-5 lawyers).)

Specifically, the Council recommended a "No" Vote by 86% margins on Propositions A, B, D, and E. By a narrow 54% margin, the Council recommended a "Yes" vote on item C, and by a 73% margin, a "Yes" vote on item F. Here are the specific votes:

PROPOSITION A: Terminology, Competent and Diligent Representation, Scope of Representation and Allocation of Authority, Communication, Fees, Confidentiality, Safekeeping Property, and Declining or Terminating Representation

Do you favor the adoption of Proposed Rules 1.00-1.05 and 1.15-1.16 of the Texas Disciplinary Rules of Professional Conduct, as published in the December 2010 issue of the Texas Bar Journal?

Yes: 14% No: 86%

PROPOSITION B: Conflicts of Interest; Multiple Clients in the Same Matter:

Do you favor the adoption of Proposed Rule 1.07 of the Texas Disciplinary Rules of Professional Conduct, as published in the December 2010 issue of the Texas Bar Journal?

Yes: 14% No: 86%

PROPOSITION C: Other Conflicts of Interest

Do you favor the adoption of Proposed Rules 1.06 and 1.08-1.12 of the Texas Disciplinary Rules of Professional Conduct, as published in the December 2010 issue of the Texas Bar Journal?

Yes: 54% No: 46%

PROPOSITION D: Prohibited Sexual Relations, Diminished Capacity and Prospective Clients:

Do you favor the adoption of Proposed Rules 1.13, 1.14, and 1.17 of the Texas Disciplinary Rules of Professional Conduct, as published in the December 2010 issue of the Texas Bar Journal?

Yes: 14% No: 86%

PROPOSITION E: Advocate, Law Firms and Associations, Public Service, and Maintaining the Integrity of the Profession:

Do you favor the adoption of Proposed Rules 3.01 – 3.10, 5.01-5.07, 6.01-6.03, and 8.01-8.05 of the Texas Disciplinary Rules of Professional Conduct, as published in the December 2010 issue of the Texas Bar Journal?

Yes: 7% No: 93%

PROPOSITION F: Counselor, Non-Client Relationship, Information about Legal Services, and Severability of Rules:

Do you favor the adoption of Proposed Rules 2.01-2.02, 4.01-4.04, 7.01-7.07, and 9.01 of the Texas Disciplinary Rules of Professional Conduct, as published in the December 2010 issue of the Texas Bar Journal?

Yes: 73% No: 27%

Personally, I'm voting "No" on all of the items. Because the two conflict-of-interest rules are expressly tied together, I think it would be a little illogical to vote against one but not the other. Defeating one or both will send these proposals back to the drawing board-which is where they belong.

Lastly, I want to respond to what I think is a misstatement from the State Bar leadership on the rules referendum. While I recognize that many have worked in good faith for quite some time on this rules project, the time spent is no reason to sacrifice accuracy or to adopt rules that are not sound. I also do not understand why Bar leaders, as elected representatives in an entity created by the State, believe it is proper to spend our bar dues to push a one-sided agenda. It seems to me that they should be neutral, and just let the proponents and opponents have fair discussion. After all, the State Bar Act, in Tex. Gov't Code § 81.011(a), says that the State Bar is "an administrative agency of the judicial branch of government."

Here's a statement sent out by Bar leaders that particularly disturbs me, in their January 14th email:

"Comment 8, like other comments to the proposed rules, does not require lawyers to take any action. Instead, the comment explains determinations a lawyer "should" make. As paragraph 7 in the Preamble states, the comments do not add obligations to the rules, and no disciplinary action may be taken solely for a lawyer's failure to conform to comments."

To me, that seems very misleading. The Bar leaders want to downplay the significance of Comments. In part, that's probably because most of what would govern us in these proposals appears in the Comments, which are far longer than the Rules. But in any event, they're not letting us vote on the Comments.

I encourage you to read the proposed Preamble to the Rules-even though we don't get to vote on the Preamble either. Paragraph 6 of the Preamble says that "the Rules and their Comments" are a "body of principles a lawyer can rely upon for guidance," and that the Comments provide "interpretive guidance." Paragraph 7 says that the Comments "illustrate or explain applications of the Rules." Don't you think that if the Comments "explain applications of the Rules" that a lawyer is likely to get in considerable trouble if he or she tries to argue that the Rules don't mean what the Comments "explain" that they mean?

Courts cite and rely on the Comments. The Professional Ethics Committee cites and relies on the Comments. We need to be concerned about the Comments. For example, in the important attorney's fees decision, Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 562 (Tex. 2007), the Texas Supreme Court cited and quoted Comment 4 to Rule 1.15 as support for the holding that "[p]ublic policy strongly favors a client's freedom to employ a lawyer of his choosing and, except in some instances where counsel is appointed, to discharge the lawyer during the representation for any reason or no reason at all."

The Comments matter. They are important. It is misleading for Bar leadership to suggest otherwise.

I hope you'll join me in voting "No" on all Referendum items. Thank you. – Brian Burris