The Referendum: A PI Lawyer's Opinion

 Posted on January 17, 2011 in Uncategorized

From Austin, Texas personal-injury/unemployment lawyer Joe Crews:For several reasons, I and my firm intend to vote No on the rules referendum.

First, the election procedure and the Bar leadership's one-sided salesmanship job to shove these proposals down our throats seem to me to be grossly unfair-and of doubtful legality. I've already complained to the Bar about this procedure, and I encourage you to do the same. They are spending your and my hard-earned bar dues dollars to promote a politically skewed rule agenda. That's not right. The Bar is a governmental entity, created by the State Bar Act and supported by our Bar dues. But now it's making us pay for its own result-oriented propaganda campaign. Government is not supposed to campaign. I really don't understand why the Bar is overreaching like this.

And the referendum itself is, at best, "diluted democracy." Most of the proposed verbiage is in the Comments, not the Rules. But we don't get to vote on the Comments. Yet the proposed Preamble-which we also don't get to vote on- says we can "rely upon" the Comments and that they provide "interpretive guidance" and "illustrate or explain applications of the Rules."

The Bar leadership says "You never get to vote on Comments. You just get to vote on the Rules." Well, why don't we get to vote on the Comments? I don't find any rule or statute that says lawyers are prohibited from voting on the proposed comments. What's the harm in letting us vote, giving us a say? We elected the Bar leaders to represent our interests, not dictate to us.

The drafters say "you can't be disciplined for violating a comment." I want to see someone hauled up for discipline tell the disciplinary authorities "OK, so what I did was flatly inconsistent with the Rules, as ‘explained' in the Comment, but just ignore the Comment."And, incidentally, discipline isn't the only use of the Rules and the Comments. They frequently come into evidence in legal malpractice cases-and especially in breach-of-fiduciary-duty cases. Experts testify about them. In the Texas Supreme Court's landmark fee-forfeiture decision, Burrow v. Arce, the Court cited six different rules. So the Bar's statements to the effect that we shouldn't worry about all the problems in the Comments is just flat wrong.

Also, for the 20 years we've had the current rules, they seem to have worked well. Why do we need new rules? The old country saying "If it ain't broke, don't fix it" seems to apply pretty well to this situation. And we sure don't need new rules that are already broken-as so many of these new proposals seem to be.

I've heard some referendum proponents say "we need to change our rules because the ABA changed its rules in 2002." But then I see that many of the proposed changes to important rules are different from the ABA. In fact, the proposed rules are different from the ABA Model Rules on critically important issues, such as the fee rule (1.04), confidentiality (1.05), and conflicts of interest (1.06 and 1.07). So the Bar's argument doesn't hold water. This is change for change's sake.

Consider this gobbledygook language in the proposed fee rule: "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." The drafters say that new language is supposed to increase the number of client grievances against lawyers over fees. Given how garbled and convoluted that language is, I would expect that's right. Non-lawyers won't understand it at all. And what's the difference between a "belief"‘ and a "firm belief"? (I can't wait to cross-examine an expert witness on that distinction.)

Bottom line: What's wrong with using simple, clear language? The ABA prohibits "unreasonable fees." Lawyers deal with the "reasonableness" standard all the time. in negligence cases. The Houston Chronicle lampooned the proposed convoluted fee-rule language-and for good reason. That certainly doesn't help our profession's image with the public.

And the confidentiality rule says, in effect, that nothing's confidential if it's on the Internet. We all know that what's on the Internet changes wildly from day to day. Practically speaking, that's an unknowable standard. Frankly, I want more protection and more certainty than that for both my clients and myself.

The new conflict of interest rules seem to me to be a mess. Apparently we'd be the only state in the nation with this Rube Goldberg system of having to satisfy two general conflicts of interest rule every time we want to represent two or more clients. If you haven't read the proposed Rule 1.07, I encourage you to do so. Then read the comments. Then try to figure out what you have to "determine" (i.e., predict with a crystal ball) and warn the prospective clients about. Then read Rule 1.06, which we also would have to comply with at the same time, and try to figure out how Rules 1.06 and 1.07 fit together. Good luck. It's like solving a Rubik's Cube in the dark.

I and my law firm are voting "No" on the referendum on the proposed rule changes, and I hope you will, too.

Thanks. – Joe CrewsPO Box 2505Austin Texas 78768United States