A Referendum Awaits Us—Let’s Get Informed and Cast Our Votes

PRESIDENT'S COLUMN

BY KENNON WOOTEN, SCOTT DOUGLASS & McCONNICO

Texas lawyers have many privileges, including the privilege to participate in referendums on proposed amendments to the Texas Disciplinary Rules of Professional Conduct and Texas Rules of Disciplinary Procedure. Between Feb. 2, 2021 and March 4, 2021, the State Bar of Texas will conduct such a referendum, using both written ballots and electronic ballots for its members.

By way of background, the proposed amendments were developed pursuant to a process required by the State Bar Act. The Committee on Disciplinary Rules and Referenda (CDRR)—comprised of members appointed by the State Bar of Texas president and the Supreme Court of Texas (“Court”)—initiated the process by drafting proposed amendments, which were published in the Texas Bar Journal and Texas Register. Public comments were accepted for at least 30 days on each of the proposed rules, and at least one public hearing was conducted on each of the proposed rules. Then, the proposed rules were submitted to the State Bar board of directors, which petitioned the Court to submit the proposed rules to State Bar members for a referendum in 2021.

The 2021 referendum will include proposed amendments pertaining to a broad range of topics, including clients with diminished capacity, the disclosure of confidential information, conflicts of interest exceptions for nonprofit and limited pro bono legal services, lawyer advertising and solicitation, reporting professional misconduct, reciprocal discipline, the assignment of judges to hear complaints, and the voluntary appointment of a custodian attorney for the cessation of practice. We have a lot to process with these proposals, but time is on our side. Let’s use the time we have to learn, listen, and engage in dialogue as needed so we can cast informed votes in 2021.

As members of the State Bar, we are unique among professionals in Texas, in part because our system of selfgovernance gives us the right to vote on the rules that regulate our conduct.

All of the proposed amendments are set forth in an administrative order (Misc. Docket No. 20-9144), which is printed in the November 2020 issue of the Texas Bar Journal and posted on the Court’s website (www. txcourts.gov/supreme/administrative-orders/). For additional information—including a summary of the amendments, a schedule of public forums, a sample ballot, and background information—go to texasbar.com/rulesvote. The Austin Bar Association also has a working webpage of referendum resources, including a link to the administrative order, a link to a PowerPoint presentation and article prepared by Claude Ducloux (a CDRR member), and links to the State Bar resources mentioned above. If you want to submit articles or other materials for inclusion on the Austin Bar’s webpage, please send them to nancy@austinbar.org.

As a former rules attorney for the Court, I have observed firsthand how much time, money, and hard work goes into a referendum on proposed amendments to disciplinary rules. As lawyers who are simply tasked with voting on such proposals, our job is relatively easy. But it is also important.

As members of the State Bar, we are unique among professionals in Texas, in part because our system of self-governance gives us the right to vote on the rules that regulate our conduct. For this system to work as intended, we must engage, get informed about the proposals at issue in the 2021 referendum, and exercise our right to vote. We have a voice. Let’s use it, and let’s do so with care. AL