On Oct. 1, the State Bar of Texas board of directors will consider recommended changes to the proposed amendments to the Texas Disciplinary Rules of Professional Conduct -- including revisions in the proposed no-sex-with-clients rule and in the rule addressing ex parte communications between lawyers representing parties in contested administrative cases and state agency decision-makers. The State Bar board’s Discipline/Client Attorney Assistance Program Committee presented its recommendations for revisions to the proposed rules at the Sept. 21 meeting of the Bar’s Executive Committee. Kelley Jones King, the State Bar’s deputy executive director, says the executive committee sent the DCAAP committee’s recommendations to the Bar board without making further changes. Among other things, the DCAAP committee recommended that proposed Rule 1.13(b) – which addresses sex between lawyers and clients – prohibit a lawyer from soliciting or accepting sexual relations for fees or expenses. Ginny Agnew, an attorney with Herring & Irwin in Austin, says, “I think that’s a real significant correction on their part.” Agnew, one of a dozen women who sent e-mails raising concerns that Rule 1.13, as originally proposed, did not go far enough, says the issue of expenses could come up in a child custody case if a client does not have the money to hire a child psychologist. A lawyer could offer to pay for the psychologist in exchange for sex with the client, she says. In addition to recommending changes to that rule, the DCAAP committee recommended new language in the comment to proposed Rule 1.13. Roland Johnson, the State Bar’s immediate past president and a shareholder in Fort Worth’s Harris Finley & Bogle, says the proposed revisions to the comment make it clear why there should be a rule prohibiting lawyers from having sex with their clients and “makes it clear that the rule shouldn’t be used as a tactic between adverse parties.” With regard to ex parte communications, the DCAAP committee recommended retaining the language of the current Rule 3.05(c)(2). As recommended by the DCAAP committee, the proposed rule would define a matter as “pending” before a “particular tribunal” when the entity has been selected to determine the matter or when “it is reasonably foreseeable that the entity will be selected.” In May 2009, the Texas Supreme Court-appointed Professional Ethics Committee issued an opinion based on current Texas Disciplinary Rule of Professional Conduct 3.05 to prohibit lawyers from having ex parte communications with state agency officials when the lawyers expect to file contested cases. Pam Bolton, policy and research director for government watchdog group Texas Watch, says, “I believe now the ethics opinion will stand.” The DCAAP committee also has recommended that lawyers vote on the proposed amendments to the disciplinary rules in their entirety rather than rule-by-rule. The State Bar board must submit its comments and recommendations on the rules to the state Supreme Court by Oct. 6.
-- Mary Alice Robbins