In early 2011, State Bar of Texas members will get an opportunity to have their say on proposed amendments to the Texas Disciplinary Rules of Professional Conduct. In an order signed Nov. 16, the Texas Supreme Court directed the State Bar to conduct a referendum on the rules from Jan. 18 through Feb. 17, 2011. Attached to the court’s order is the ballot form, on which the proposed rule changes are grouped into seven different categories. Bar members will vote “yes” or “no” on each category of the rules. In a letter today to State Bar president Terry Tottenham (pictured, left), of counsel at Fulbright & Jaworski in Austin, Supreme Court Chief Justice Wallace Jefferson (pictured, right) noted that the court has made a few substantive revisions to the rules recommended by the State Bar board of directors. For example, the court revised proposed Rule 1.04(d)(1) to require a lawyer’s signature on a contingent-fee agreement. According to the letter, the court also did not incorporate most of the revisions that the Bar board recommended for Comment 1 to proposed Rule 1.13, which addresses sex between lawyers and their clients. Still an unanswered question is whether the Supreme Court, which has administrative authority over the State Bar, will promulgate the rules if the Bar membership votes them down. Justice Phil Johnson, the Supreme Court’s liaison on the rules, says, “The court has not taken a position on that at this point in time.” Johnson says the Supreme Court is precluded by the Texas Constitution from giving advisory opinions and takes action when it has a controversy before it. If the lawyers turn down the rules, Johnson says, “I suspect strongly there will be a controversy about it.” Tottenham did not immediately return a telephone call for comment.
-- Mary Alice Robbins