“The Texas Supreme Court Made Us Do It!”

 Posted on February 22,2011 in Uncategorized

The Supreme Court has ordered that the referendum proceed with this structure that appears on the ballot. And we're complying with the court's order.

Texas lawyers elected not to adopt these rules. We expect that this will not be the end of the Supreme Court's interest in making revisions to these rules.

The first quote is part of State Bar President Terry Tottenham's response to my theory that the form of the Disciplinary-Rules Amendment referendum ballot was unlawful because it did not allow a vote on each amendment or new rule. The problem for Tottenham's theory is that the Supreme Court just signed off on the referendum, while explicitly withholding judgment on any legal issues: "The Court's approval of this referendum is not a predetermination of any legal issues regarding the proposed rules."

The second quote is part of Tottenham's response to the crushing defeat of the proposed amendments in the election. If you believe former committee co-chair Lillian Hardwick, though, who summarized the history of the rules amendments in A Supreme Collaboration:

Like its counterparts across the country, the Supreme Court of Texas appointed a task force to assess the need for changes to the Rules and to suggest new language. In Texas, the Supreme Court has inherent power to regulate the practice of law. The Court wanted independent input on the Rules to complement the work of the State Bar committee.

Here's a rule of task forces and committees: they justify their own continued existences. If you appoint a task force or committee to assess the need for changes and suggest new changes, it will find that changes are needed, and will suggest needed changes. So is the Supreme Court of Texas interested in revising the rules that have worked just fine for us for 20 years? Or is the Supreme Court interested in assessing the need for changes?

There's something childish about the President of the State Bar of Texas trying to foist the blame for the State Bar's ill-considered and soundly rejected DR amendments off on the Supreme Court. This was in the State Bar's hands; the court rubber-stamped what the State Bar asked for. Lawyers' rejection of the amendments wasn't a referendum on the Texas Supreme Court. It was a referendum on some lousy rules mistakenly propounded by people of presumptively good intent. If they can't handle the rejection of having their work (the amendments) tossed out by their bosses (the members of the State Bar), they're in the wrong line of work.

(But wait. The State Bar spin gets worse. Stay tuned.)