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January 18, 2011 in
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
What reasons are there to NOT vote for 1.13 NO SEX with clients. NO Couch fees? I know if properly developed it’s already prostitution but a bright line rule prohibiting such conduct when other professions get a Penal Code prohibition just doesn’t make sense. I completely agree with the day to day practicing lawyers out there having all the various issues mentioned here and elsewhere. I also have clearly stated (personally) this is the ONE RULE I would hope the membership could vote for. What occupation – in the off season – do “most” State legislatures historically work in? – Law. Who deems it a CRIME for Medical, Psychological, and spiritual “professionals” to have sex with a client under certain circumstances – yet we as Lawyers don’t even have a simple Professional Rule on the matter. I’m FOR FLAT FEES. But members please don’t take a scorched earth policy and vote no on 1.13 Prohibited Sexual Relations. Just my PERSONAL opinion.
Respectfully,
Larry Standley
OK, after reading my last post (above – below – whatever) Too many double negatives. Late night O.C.D. kicking in – so here: I am humbly asking the State Bar membership to VOTE YES for the following:
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? VOTE YES !!!!!
Otherwise it shouldn’t be a CRIME for Medical, Psychological or Spiritual “Professionals” to engage in the same conduct.
Brian’s post against the referendum seems focused on 2 points: (1) that the comments are not up for separate vote and (2) that the SBOT is biased in favor of the proposed rules, rather than neutral.
1. Has anyone EVER voted on comments to our rules? Has any state ever put the comments out separately from their rules (in those states that even give the bar a chance to vote)? The Comments are part and parcel with the rules and the Supreme Court published them as such. If you have a specific problem with any rule or comment, make your point. But it seems insincere to use the “we can’t vote on comments” excuse for a broadside attack on the entire referendum.
2. The SBOT Board was part of the vetting and refinement process. What agency of any government does not promote the rules it promulgates? There was ample opportunity for input and feedback and quite a few changes came out of those phases (such as, for example, the re-insertion in 3.05 of the definition of “pending” to make sure lobbyists can’t get around the bar to ex parte advocacy by waiting to file their petitions after they lobby for them). The SBOT Committee on the TDRPC was a major part of the revision process. That Committee is made up of lawyers from every type of practice, criminal and civil. I simply do not understand this argument and believe that those who make it are unable to find anything better.
Most of the “vote no” advocates have misunderstood key provisions and, I have found, when they take a closer look, find they have been mislead by the “anti-everything” people. If you have questions, ask someone who has worked on these rules. But most importantly, READ the proposed rules instead of relying on the “anti-government,” “anti-bar,” “anti-everything” crowd. (I saw a post urging “no” votes because of the author’s disdain for the federal debt!)
Our rules are in serious need of updating, as indicated by Larry Standley’s post above. Rules 1.13, 1.14 and 1.17, alone, add tremendous value and the revision of 1.05 is designed to help lawyers avoid discipline due to misunderstanding the rules.
I voted FOR all of the rules. Not because they are perfect (they aren’t), but because they are better overall than what we have today. I urge you to do so, as well.
Mr. Kinard,
You may be well-informed about the rules, but you seem grievously ill-informed about the problems lawyers have with the rules. See the extensive discussion here, for example, on the State Bar’s efforts to surreptitiously bar flat fees. Those who “worked on these rules” (Hardwick, Moss) claim that criminal defense lawyers’ “problem is with existing law”—that is, that we’ve been doing it wrong (unlawfully) all along. But the truth is that a few non-practicing lawyers (how’s the law practice, Mr. Kinard? Yeah, I thought so) have been trying for years to ban flat fees and, failing under the current rules, have resorted to changing the law by regulation.
The existing law allows us (by definition, if you’re a positivist) to do things the way we’ve always done them, but the non-practicing lawyers think that things must change. Unfortunately, they haven’t considered all of the angles or unintended consequences. I suspect that the same is true of other rules as well.
In any case, straight-ticket “no” voting is appropriate because the form of the referendum is unlawful. Maybe if we kill this referendum, the State Bar will allow us to vote on the amendments and rules as the Legislature intended: with a vote on each rule, and then maybe we won’t throw out the sex-with-clients-rule baby with the prospective-clients-rule bathwater.
Finally, it should be pointed out (since you don’t reveal it) that not only are you a non-practicing lawyer, but you are also a member of the committee that drafted the rules, and have been since 2009. This—your position, and even more your failure to disclose it—affects your ethos, and—in my view—guts your argument.
Let me address your points specifically, if I may.
1. The entire referendum is a sneak attack on the flat fee. Bogus. The profession as a whole is embracing value billing and I have not seen or heard of any effort to surrepticiously kill off flat fees. Professors Steele and Moss are right: those who think the proposed rules indicate flat fees will not be allowed are both mistaken about the proposals AND mistaken about the present rules.
The issue, of course, isn’t about flat fees at all–if you would be as honest as you think I should be. It is about whether a lawyer must put some of those flat fees into a client trust account rather than his operating account. The law is unsettled on where the line is for “unearned” portions of flat fees, and that is entirely outside the scope of these Rules.
2. The “existing law allow us to do things the way we’ve always done them.” Quite a stretch. For one, these Rules are not “law,” but limits upon what lawyers can be disciplined by the Bar for and what they cannot be disciplined by the Bar for. Secondly, “always” is a gross exaggeration (I assume you will admit to).
3. The referendum is “illegal.” Based on what? The Keller decision? Bogus. The U.S.S.Ct. specifically held [496 U.S. 1, 16] that “compulsory dues may not be expended to endorse or advance a gun control or nuclear weapons freeze initiative” but that “petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected with disciplining members of the Bar or proposing ethical codes for the profession.” Or illegal due to lack of an “impact statement?” Again, that is unbaseless and a complete mis-reading of Texas law.
4. That I am a “non-practicing lawyer” who was not honest about my position on the SBOT Committee and thus my arguments are meritless. Again, you are misinformed. I am indeed in active practice and do not know what leads you to believe otherwise. I have over 20 years of practice behind me, in fact. It is because of my current area of practice that I was appointed by the Bar President to the Committee in Dec. 2009 to fill a gap that the Chief Justice noticed on the Committee–the voice of the poverty law bar was missing. I have been on the Committee for barely a year, and had no direct involvement in 90% of the referendum content, so I am not here defending my own work.
What I DID gain from this past year is an appreciation and understanding of the Committee and where it fit into the whole process. Every discussion about whether and what to change–regardless of who requested that the Court consider a change–was dominated by three concerns: (1) was there any valid reason for the change; (2) was the proposed language in the form of a “disciplinary rule,” (as opposed to an advisory “rule” the ABA is famous for); and (3) would the language give clear guidance to the newly-licensed lawyer as to how to avoid disciplinary action.
As a new-comer to the Committee, I was cautious at first. There are ethics professors, disciplinary counsel, big firm partners, very experienced solo practitioners (like I used to be), government lawyers, corporate counsel (as I also used to be), and prosecutors (as I once was) on the Committee. I represent the poverty law section members and their concerns, and am always looking at the potential impact–especially the inadvertant impact–that each rule and comment may have on that group. (You can see one result in the exemption for them proposed in Rule 1.08(e).)
But I am here on your blog as a private member of the bar, not representing the Committee in any official capacity. In hindsight, I should have stated that up front, I agree.
I hope you are open to honestly evaluating the arguments and not just against the referendum on broad principles, because we DO need many of these changes and if this referendum fails like the last one did about 10 years ago, then our rules will continue to have serious gaps and flaws that they have had for 20 years. It won’t save money or discourage the changes indefinitely. The Court doesn’t even have to let us vote (and have you even looked to see how many states DO get to vote?). But the discussions are healthy WHEN they are on point and based on real concerns rather than misunderstandings.
I welcome any specific questions about the proposed changes. If I don’t know the answer, I promise to find out what I can for you and anyone else who posts here.
With regards,
Lewis Kinard
Of course you may respond.
1. Professor Moss’s idea of a flat fee (N.B. that’s a link, you should probably follow it—see (3) below) is not a flat fee.
A fee that is not earned upon receipt is not a flat fee. If a portion of a fee has to be placed in trust on receipt until it is “earned,” you may call it a flat fee, but it isn’t one. The fact that the reasonableness of the fee (and thus the ability to keep it) will be judged against what actually and later happens rather than against what is contractually agreed to destroys the entire premise for a flat fee, which will make flat fees (and quality private criminal-defense services) unavailable to those who need them (N.B. another link, please follow).
2. The law is a command of the sovereign, enforceable by sanction. The disciplinary rules are law. (They are not, incidentally, “ethics.” When the two sets intersect, it’s by happy accident.
“Always” means not “in every case,” but rather “for as long as there have been criminal-defense lawyers in Texas,” which I believe not to be hyperbole, much less “gross exaggeration.”
3. Please note: text like this is a link (that one links back to this page). Clicking a link will help you understand the point of the text. Think of it like footnotes. So if I say “the referendum is unlawful,” you might want to click on the link and see why I think the referendum is unlawful before you go responding to arguments that I’m not making.
4. I got the idea that you’re a non-practicing lawyer here:
I am sorry my impression was incorrect; in my defense, I don’t speak Buzzword.
Finally, Section 81.024 of the Texas Government Code says that the court does have to let us vote. You didn’t know that? Wow.
81.024 also says that we have to be allowed a vote on each rule or amendment. Let us have that, and I’ll be glad to take the rules, one by one, on their merits, and vote it up or down. The current ballot form, however, which forces us (for example) to choose between stopping a potential-client rule that is arguably harmful to the most vulnerable potential clients and allowing a sex-with-clients rule that arguably protects the most vulnerable clients, is too manipulative for my tastes.
The “unlawful” characterization, while it may be sincere on your part, is still a bit of a stretch. While you can argue that “each” means the same thing as “each one, individually,” you and I both know that is not likely to carry much weight very far.
Each new rule and each amendment are on the ballot. We all get to vote on everything on the ballot. Ergo, the ballot is not “unlawful.” Grouping rules into sets for all-or-nothing votes is not necessary. The Court could put the whole thing up for a single all-or-nothing vote and still satisfy 81.024.
Nice try, though. Much like the “Keller-based” arguments, however, it is incorrect and does not present any specific ground for voting against any particular rule.
If you feel manipulated, you are certainly not “wrong” for feeling so. That does not mean that manipulation was intended, nor does it prove it wasn’t. I had no involvement in that decision, but I am glad we didn’t need to vote on each rule separately, especially all of the vast majority that only had technical and terminology changes.
(Federal law prohibits me from accepting private clients. Therefore, the caveat on my blawg and LI profile.)
Well, time to get back to practicing law….
You’re awfully supercilious for a guy who, not three hours ago, thought that the Supreme Court didn’t have to allow us to vote on the amendments.
The unlawfulness of the ballot is not likely to carry much weight. This is not because I’m wrong, but because the State Bar sent the ballot up to the Supreme Court, and the Supreme Court approved it, none of them had read the statute any more carefully than you had before expostulating, and the Supreme Court, having approved a ballot in violation of the statute, will go to great and dishonest lengths to save face.
“Each” means “each,” and not “all” (“each” does not take the plural number). The legislature requires “a vote” on “each rule,” not “a vote” on “all the rules.”
This isn’t a reason to vote against a certain rule, but a reason not to accept any of the crap that your committee would like us to eat along with the worthwhile rules.
“All of the vast majority” are only 57 rules. I think we lawyers could probably handle answering 57 ballot questions.
You volunteered to find the answer to a question; here’s a question: Why are the rules grouped the way they are? Why put 1.15-16 with 1.00, but put the conflict-of-interest rules in separate questions, and the prospective-client rule in a different question entirely?
You asked, “Why are the rules grouped the way they are? Why put 1.15-16 with 1.00, but put the conflict-of-interest rules in separate questions, and the prospective-client rule in a different question entirely?”
There is logic to the groupings that is NOT obvious (I had the same question when I first saw the ballot). You can use the references below and follow along on the sample ballot at https://is.gd/8BBzLv .
Ballot section (a) contains all of the Section 1 rules except for those in sections (b), (c) and (d).
Section (b) is Rule 1.07, set apart because it drew the most input from the bar in general.
Section (c) contains the other conflicts rules besides 1.07 and 1.17.
Section (d) groups all of the entirely new rules.
Section (e) is where all rules in other sections are grouped that have moderate substantive changes but that the Court did not see any remaining objections or complaints based on the public comments received.
And section (f), as you can tell, is where all of the rules with technical-only revisions are.listed.
Though the ballot section titles are somewhat descriptive, they do not explain these groupings adequately, IMO.
Hope this helps.
(And yes, you are correct that I mistakenly wrote that the Court does not have to let the bar vote on the rules. It does not have to let us vote on each individual rule separately or on the Commentary, but it DOES have to put all rules up for a vote.)
(Oh, and there is STILL no sneak attack on or conspiracy against criminal defense counsel flat fees.) =)
Thanks.
Your assertion there is no sneak attack on criminal-defense flat fees, “while it may be sincere on your part,” just means that you aren’t part of the conspiracy.
Flat fees in criminal cases are perfectly legal in Texas. The accused can bargain with the criminal-defense lawyer for any fee that is not unconscionable. Putting such fees in operating accounts is perfectly legal. The test of what goes into trust is not whether the fee is “earned” but who it “belongs to.”
It is the position of the State Bar that payment for services that have not yet been rendered must, even if the parties have agreed that the fee is earned upon receipt, be placed in trust until the service has been performed. This is not the current state of the law, but this is what the people amending the rules wish it to be.
There are people who think that flat fees (as I define them—the problem goes away if you say that a staged fee is a flat fee; Abraham Lincoln famously asked how many legs a dog has if you call a tail a leg; I’ll leave you to find the answer) should not be allowed. These are the people upon whom the State Bar calls to rationalize why the new rules aren’t an attack on flat fees: “your problem is with applicable law.” (And I’ll bet dollars-to-donuts that these are the folks who wrote the State Bar’s trust-account booklet, which you’ve cited elsewhere for “the current rules on the subject,” and which I debunk here.)
The rules now allow flat fees. The rules as amended are intended not to. If you want to say that’s not an attack on flat fees, okay, but you’re wrong.
There is no change in that rule. Nothing about flat fees is going to change if the rule referendum passes. The language is carried forward verbatim.
It seems that somewhere I read the finding that “The language of Rule 1.15(d) fails to clearly state that its mandates apply to a nonrefundable flat fee contract in a criminal case.”
Where there is doubt, make it clear in the fee agreement. That will make the issue even more difficult for a disciplinary counsel attorney to successfully attack. (BOTH under today’s version of the rule and the one proposed.)
=======
But I am curious about a point I read on another blog. The author was proposing that we vote no as part of an effort to get the State Bar Act repealed. Even if that were within the realm of plausibility, I wonder what he thinks would be put in its place?
1.04 isn’t being amended to change the standard for an improper fee from the prospective, subjective “if a competent lawyer could not form a reasonable belief that the fee is reasonable” to the retrospective, objective “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”?
And 1.15(d) (previously 1.14) isn’t being added, providing that “A lawyer shall deposit unearned fees … into a client trust account, to be withdrawn by the lawyer only as fees are earned ….?”
Someone had better tell the State Bar.
The finding to which you are referring (referring to old 1.15, proposed 1.16(d)) was in CFLD v. Looney; you read it here. The State Bar didn’t appeal, it isn’t going to give up that easily, and it continues maintaining (even in light of that finding) that 1.15(d) does in fact apply to flat fees.
I agree that the better practice is to make the contract unambiguous (and entirely unlike that in Cluck). But that’s not going to stop SBOT from paying Hardwick, Schuwerk, or some other non-practicing lawyer to come in and opine that the contract itself violates the rules. For a sample, I encourage you to read Schuwerk’s testimony in CFLD v. Looney.
Perhaps you’ll consider asking your question about “another blog” on that blog.