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Where to Go to Vote “No”
Texas Bar's online ballot for the disciplinary rules referendum.
Remember: there is no quorum requirement, so abstaining is as good as voting "Yes."
The Referendum: A Former Chief Disciplinary Counsel's View
From Jim McCormack of Austin. Jim is a former General Counsel and Chief Disciplinary Counsel to the State Bar of Texas. (If you're a Texas lawyer, you've probably received Jim's emails about the referendum).A good place to start is with a "No" vote in next week's referendum.
Yesterday morning, I sent an email urging a "no" vote in the State Bar disciplinary rules referendum that will begin next Tuesday, January 18th. I set out my concerns that the proposed Texas disciplinary rules would further degrade the effectiveness of our disciplinary system by imposing new burdens and costs on a system that is already struggling. My point was that adopting these proposals is not, as some proponents have claimed, a key to our continued self-governance as a profession. In fact, it is the opposite. If we truly care about a profession that is strong enough to regulate itself, then we had better pay closer attention to how effectively our institution, the State Bar, is disciplining bad lawyers.
The Referendum: A PI Lawyer's Opinion
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."
Ethos, Fleas, and Awesomeness
The State Bar's ethics "expert" Lillian Hardwick has hitched her horse to "concierge attorney" Robert S. "..." Bennett‘s ethical wagon:
Robert S. "..." Bennett, you'll recall, was the consumer lawyer who tried to represent Allen Stanford in a case that he seems to have gotten by badmouthing Kent Schaffer in an email:Allen Stanford Documents
Flat Fee Fight: What's Really Going On?
The State Bar's "you criminal defense lawyers are all violating the rules already" response to concerns about the rule amendment gutting flat fees, which I marked here, was written by "Lillian Hartwick," whom the response describes as "a former chair of the State Bar TDRPC Committee." (Archived PDF here.) There is no "Lillian Hartwick" licensed to practice law in Texas. There is, however, a Lillian Hardwick. (The State Bar can't even get its expert's name right-ethos again.) Here's Hardwick's online profile; she describes herself as being in "other law-related employment." There's a brief bio of Hardwick here:
Question D
Question D on the State Bar's referendum seeks approval of amended rules 1.13, 1.14, and 1.17.
Rule 1.13. Prohibited Sexual Relations(a) A lawyer shall not condition the representation of a client or prospective client, or the quality of such representation, on having any person engage in sexual relations with the lawyer.(b) A lawyer shall not solicit or accept sexual relations as payment of fees or expenses.(c) A lawyer shall not have sexual relations with a client that the lawyer is personally representing unless the lawyer and client are married to each other, or are engaged in an ongoing consensual sexual relationship that began before the representation.Terminology: See Rule 1.00 for the definitions of "person" and "represents."Rule 1.14. Diminished Capacity(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for another reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action. Such action may include, but is not limited to. consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, attorney ad litem, amicus attorney, or conservator, or submitting an information letter to a court with jurisdiction to initiate guardianship proceedings for the client.(c) When taking protective action pursuant to (b). the lawyer may disclose the client's confidential information to the extent the lawyer reasonably believes is necessary to protect the client's interests, unless otherwise prohibited by law.Terminology: See Rule 1.00 for the definitions of "consult," "reasonably.'" "reasonably believes," "represents," and "substantial."Rule 1.17. Prospective Clients(a) A person who in good faith discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.(b) A lawyer shall not use or disclose confidential information provided by the prospective client, except as provided in Rule 1.05 or (d)(2).(c) A lawyer who has received confidential information from a prospective client shall not represent a person with interests materially adverse to those of the prospective client in the same or a substantially related matter, except as provided in (d)(1) or (d)(2). When a lawyer is personally prohibited by this paragraph from representing a person in a matter, no lawyer who is affiliated with the personally prohibited lawyer, and who knows or reasonably should know of the prohibition shall represent that person in that matter.(d) When a lawyer has received confidential information from a prospective client, representation of a client with interests materially adverse to those of the prospective client in the same or a substantially related matter is permissible if:(1) the prospective client has provided informed consent, confirmed in writing, to the representation; or (2) the lawyer conditioned the discussion with the prospective client on the prospective client's informed consent that no information disclosed during the discussion would be confidential or prohibit the lawyer from representing a different client in the matter.Terminology: See Rule 1.00 for the definitions of "affiliated," "confirmed in writing," "informed consent," "knows," "person," "personally prohibited," "reasonably should know," "represents," and "writing."
The Rest of Question A
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.
Are 10,000 Texas Criminal-Defense Lawyers Wrong on Flat Fees?
Current Disciplinary Rule 1.14 requires a Texas lawyer to hold property "belonging in whole or in part to clients" separate from her own property. Current Disciplinary Rule 1.05(d) requires her to "refund[] any advance payments of fee that has not been earned" when discharged. The State Bar's position is that each of these lawyers in each of her cases-more than ten thousand lawyers, millions upon millions of cases-has violated Rule 1.14, and that in every case in which a lawyer was discharged before the case was complete and refunded nothing-probably millions of cases-the lawyer has violated Rule 1.05(d).
Yet I know of no case (there is no court decision, and the State Bar does not make decisions of grievance committees searchable) in which a Texas criminal-defense lawyer has been disciplined for charging a conscionable contractual flat fee and either failing to keep it separate from her own property or failing to refund a portion of it when discharged.
What the State Bar Thinks About Flat Fees
In its concerted effort to sell lawyers the bill of goods that is the amendments to the Texas Disciplinary Rules of Professional Conduct, the State Bar and its mouthpieces keep saying things like this:
YOU MAY HAVE HEARD/READ: "The proposed rules will turn fee collection in the criminal defense world on its head."CLARIFICATION: This concern may be a reference to proposed Rule 1.15 (regarding safekeeping of property). Comment 12 to that rule says, "Applicable law, not these Rules, determines when a fee is earned." Criminal defense counsel should review the law on commingling client and lawyer funds when the lawyer has possession of unearned fees. The proposed rule does not (and could not) change this law, and it does not change how the existing rule handles a flat fee.
What is "applicable law"? Here's what the State Bar of Texas wishes applicable law to be:
Refundability: When is a Fee Earned?
More on my series of posts about the proposed amendments to the Disciplinary Rules, and specifically the State Bar's efforts to do away with flat fees in Question A of the referendum...
The State Bar's theory appears to be that there exists a dichotomy: a fee is either "earned" or "refundable," so that if there is any possibility that a portion of a fee will have to be refunded, that portion is not earned.
So when is a legal fee no longer refundable?
A portion of any fee is refundable as long as a court could decide that the fee was excessive-under the current rules, "unconscionable"; under the amended rules, retrospectively "unreasonable." The limitations period for filing a grievance against a lawyer in Texas is four years.
So a lawyer could complete her representation, and four years later the client could file a grievance alleging that the fee was (under the rules if they are amended) in retrospect unreasonable. A court (or a grievance committee, if the lawyer was so foolish) could, years after the contracted work was done, rule that the fee had been unreasonable, and the lawyer could be required to refund a portion of the fee. The possibility is remote, but it exists.
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