The State Bar of Texas has just announced the results of the referendum on the proposed amendments to the Texas Disciplinary Rules of Professional Conduct. Here's what the press release says: "State Bar members voted down the proposed amendments to the rules. Of those licensed attorneys eligible to vote, nearly 44 percent voted. '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,' said State Bar of Texas President Terry Tottenham. 'It was the culmination of a long process that started in 2003. It was time to put these proposals before the lawyers of Texas,' Tottenham said. 'The debate was rigorous – from the time the Supreme Court first put the proposed amendments out for comment in October 2009 through today, the final day of voting.' ” For past Texas Lawyer coverage, click here, here, here and here. (Editor's note: This blog has been updated to reflect the State Bar's corrected information on the percentage of attorneys who voted.)
UPDATE: In an interview, Tottenham says, “Referenda have failed in the past and the issues have been reconsidered for future submission. But we do not know if this will happen in this case. But we will look to the Supreme Court for direction.” Southern Methodist University Dedman School of Law professor Linda Eads, who is a strong proponent of the rule changes, believes the referendum’s defeat was the result of bad information that went out to lawyers “and the truth never caught up with it.” She says the result of the referendum is that Texas will be stuck with some inadequate disciplinary rules. “One is that we don’t have a sex-with-clients rule,” she says. “We will be one of the few states that doesn’t prohibit having sex directly with clients.” Eads also believes some lawyers voted against the rules because they don’t like the Texas Supreme Court, which promulgates the rules that regulate attorneys. “One person told me, ‘If these rules go down in defeat it will be a referendum on why we need to throw out the Texas Supreme Court.’ So, a lot of people voted for this as a political agenda as opposed to what are good rules and what are better rules,” she says. “They hate the Texas Supreme Court because plaintiffs lawyers view it as conservative. It’s a shame that better rules won’t get passed but the world will live,” Eads says. Chuck Herring, a legal ethics expert and partner in Austin's Herring & Irwin who opposed the proposed rules, says it's not a bad thing that they were rejected by Bar members. "I think what you saw obviously was that an overwhelming majority thought they [the proposed rules] had problems and flaws. What you did get was a very strong message to that effect," Herring says. "We heard from a broad cross-section of lawyers -- big firms to plaintiffs firms to solo practitioners to criminal-defense lawyers. It really cut across groups. It lets them go back to the drawing board and pull in those groups and stakeholders," Herring says. "It gives the Bar the opportunity to have better rules."
-- John Council