The Rest of Question A

 Posted on January 16, 2011 in Uncategorized

Besides an attempt to eviscerate flat fees, what is the State Bar asking us to approve in Question A of its referendum, and is any of it worth the harm that will be done to criminal defendants in Texas?

Here's Question A:

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?

Rule 1.00 defines terminology for the rest of the rules.

Rule 1.01 is "Competent and Diligent Representation." The amendments make small changes.

Rule 1.02 is "Scope and Objectives of Representation." The amendment would require a lawyer's limitation on the scope, objectives, or general methods of the representation to be reasonable under the circumstances. Small stuff.

Rule 1.03 is "Communication." The amendment would require a lawyer to inform the client of any decision or circumstance requiring the client's informed consent, and reasonably consult with the client about the means by which the client's objectives are to be accomplished (no fire-and-forget lawyers?). Small stuff.

Rule 1.04 is "Fees." The amendment would change the standard for the illegality of a fee from "unconscionable" down to "clearly excessive," and define clear excess retrospectively "after a review of the facts." It requires a contingent-fee agreement to be signed by the lawyer and the client, and to inform the client of the expenses for which the client will be responsible whether or not he wins. Other than the changed standard, which would make it easier for someone to deprive a lawyer of his fee in hindsight, this is small stuff.

Rule 1.05 is "Confidentiality of Information." The amendment reorganizes things a little and eliminates the distinction between privileged information and unprivileged client information. It redefines "confidential information" without reference to the Rules of Evidence and removes from the definition of "confidential information" anything "that is or becomes generally known or is readily obtainable from sources generally availabel to the public." This is a significant change, it is not to the client's benefit, it is unnecessary, and it in itself would be reason enough to answer Question A "No."

The amended Rule 1.05 would make another big changes. Under the rule as amended, a lawyer would be able to reveal what was formerly privileged information (rather than just unprivileged confidential client information) when the lawyer reasonably believes it is necessary to: respond to allegations in any proceeding concerning the lawyer's representation of the client or former client or discussion with a prospective client; or carry out the representation effectively, except when otherwise instructed by the client. Under the current rules, a lawyer may only reveal unprivileged confidential client information (but not privileged information, which all confidential information in a criminal case is) in those two circumstances.

The amendments to Rule 1.05 are weaselly CYA amendments. The current rule protects client confidentiality, and provides a check on an angry lawyer's wish to divulge privileged information in response to a client's allegation of misconduct: a lawyer can't divulge such information unless there was a controversy between the lawyer and the client, or the lawyer was required to by law. If a client filed a writ of habeas corpus alleging ineffective assistance of counsel (a proceeding concerning the lawyer's representation, but not a controversy between the lawyer and the client), the lawyer could not reveal privileged information without being ordered to. It's not hard to get a court to order a lawyer to respond to an IAC habeas, but the current rule provides a little extra protection for clients' secrets. The amended rule is an effort to make things easier for lawyers whose clients allege that the lawyer did something wrong.

We often need to reveal such secrets to effectively represent our clients, but it's easy to get a client's approval for us to do so, and there's no good reason to shift the standard from "may not reveal unless the client approves" to "may reveal unless the client approves." Again, the client does not benefit from the change.

An unforeseen consequence of the amended rule, however, is that it will make it possible for third parties (including the State Bar) to breach the privilege. This is probably worth a blog post of its own, but the current state of the law is that if Momma files a grievance against Lawyer for Lawyer's representation of Junior, Momma can't waive Junior's privilege and Lawyer must keep Junior's secrets. Under the amended rule, Momma's grievance would create a proceeding concerning the lawyer's representation, and would open the doors to the Lawyer's treasure trove of secrets, which the client would never consent to revealing. You can see why the State Bar might like this.

Rule 1.15 (currently numbered 1.14) is "Safekeeping Property." This is the rule amendment that the State Bar is trying to use to accomplish its long-failed purpose of barring flat fees in criminal cases. I've written extensively about the change, but if you're just coming to the discussion in this post, see generally here.

Rule 1.16 (currently numbered 1.15) is "Declining or Terminating Representation." Small changes.

The amendments to Rules 1.04, 1.05, and 1.15 are bad ideas. The rest of the changes in Question A are mostly harmless, but none of them justify the harm that doing away with flat fees, adding uncertainty to fee-setting, and changing the rule of privilege would do to our clients.

State Bar of Texas Referendum Ballot