State Bar of Texas members vote down proposed amendments to Disciplinary Rules of Professional Conduct

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

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[S M Lineberger]

The idea that the rules were voted down because we lawyers are simply uniformed fools as Tottenham suggests is riduculous. It is precisely because we made ourselves informed that the rules were overwhelmingly voted down. Likewise, Eads is grossly out of line in her comments. By and large the rule changes seemed to be more for the sake of change than for actual improvement. If the real issue was concern over lawyers having sex with their clients, they could have simply proposed a rule that addressed that single issue rather than creating a massive, complex, contradictory overhaul that set up huge traps for well meaning lawyers to fall into. It would be interesting to know the statistics of how many lawyers had inappropriate sex with their clients but could not be adequately punished for their actions because of so-called deficiencies in our current rules. Such a complaint is nothing more than a sensational and cheap attempt to discredit thoughtful voting members. I am a supporter of our Texas Supreme Court, just not these rules. Eads' comments are nonsense are reek of sour grapes and poor taste.

[Mark Bennett]

Austin attorney,

Lewis Kinard, one of the members of the committee, suggested in a comment to my blog that we should be grateful that the Supreme Court hadn't unilaterally foisted these rules upon us because "The Court doesn’t even have to let us vote."

I suspect that he, like most Texas lawyers, hadn't read Texas Government Code section 81.024:
(c) When the supreme court has prepared and proposed rules or amendments to rules under this section, the court shall distribute a copy of each proposed rule or amendment in ballot form to each registered member of the state bar for a vote.

(That's the source of my contention that the statute requires one vote per proposed rule or amendment, by the way.)

[Austin attorney who voted no]

Very concerning to me is one comment I read from a drafter of the proposed rule changes, stating that the Supreme Court could just unilaterally adopt the rules that were just soundly repudiated. If that's the case, and I hope it's not, then I would also hope we've learned enough in the past couple years at what happens when, despite overwhelming public desire to the contrary, those who govern choose to force laws down our collective throats. All this referendum shows is that the drafters got it wrong -- both in process and in content -- and a redo is in order if at all.

[John Goren]

Professor Eads is completely out of touch. The refuge of bad policies is to say the public wasn't properly informed. Nonsense. The proposed rules were badly written and overly complicated, addressed issues that have not been serious problems, and did not demonstrably improve client representation. I hear that the Supreme Court may simply adopt the ABA Model Rules. It shouldn't. To do so would reflect the kind of deaf ear that politicans have been exhibiting for too long. The ABA is going to revamp its model rules in 2012. I see no point of changing the Texas rules until the ABA revamps its rules. You listening, Supreme Court?

[Peterson Law Group]

From the practicing lawyers that I talk to regularly, most felt that the rules (current and proposed) were not well-written. Further, I think it was to some extent a referendum on the State Bar itself. Among small town, small firm and solos, there is a general feeling that the Bar does little to support us (other than form manuals and CLEs) and that we have little input in the Bar. Many attorneys outside of big firm/big city cannot participate in Bar leadership because of the time and expense. Changes to both the rules and the Bar itself need to made or else the odds of passing any referendum are slim to none.

[Rich Robins]

If legislative reforms regarding our profession need to be on the horizon, why don't we push to require that an expert affidavit be filed by anyone who sues (more like counter-sues) an attorney for malpractice? Here's such an initiative:

http://www.capitol.state.tx.us/tlodocs/82R/billtext/pdf/HB01150I.pdf#navpanes=0

As fellow bar member Dirk Jordan has stated:

"If client's don't pay their bills, we rarely sue because we get a counterclaim for malpractice. Our malpractice carriers would probably non renew our coverage if we were counter-sued in a collections suit. Most professions have some protection from professional negligence suits, including doctors, engineers."