LEGAL TRENDS
Discussion of the Proposed Disciplinary Rules and Texas Rules of Disciplinary Procedures1
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The Houston Lawyer
By Claude Ducloux
y first job as a lawyer in 1978, long before email, cellphones or computers, was as an Assistant General Counsel to the State Bar. For almost three years, my time was divided between Texas Disciplinary Rules, (that is, learning and administering them for Grievance Committees), and learning how to try lawsuits for the State Bar, which were all prosecuted in the accused lawyer’s own hometown district court. Since then I have stayed immersed in disciplinary rules and procedures, handling hundreds of complaints, and advising lawyers and firms on how these rules and procedures are interpreted and applied. To my good fortune, I was appointed by the Texas Supreme Court to the Committee on Disciplinary Rules and Referenda (“CDRR”) upon its creation by the most recent State Bar legislative renewal, and since January 1, 2018, I have worked enthusiastically with others to modernize these rules for a system which often suffers from obsolete applications and the unmet need for change. Texas lawyers now are going to decide if that hard work paid off. The first step in ratifying three years of hard work was the Texas Supreme Court’s September 29 order which will allow Texas lawyers to vote on each proposed change separately next February 2021 in a Rules Referendum. You can review the “official” Summary of the Rules, which explains the eight proposals, known as Ballot Items A through H, at texasbar. com/rulesvote. Below are my thoughts on each proposed amendment. Comments on Proposed Amendments Ballot Item A: Scope and Objectives of Represen-
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tation; Clients with Diminished Capacity As our population ages, and many of our citizens work longer than they anticipated, the danger of encountering clients with decreased mental facility is increasing. Lawyers need a rule like this, equipping and guiding us with additional tools for handling situations which put the client or the client’s estate at risk. Under this rule, a lawyer with reasonable doubt about his/her client’s mental capacity can break the bond of confidentiality for reasonable consultations about the client’s mental status. This is permissive, however, and your failure to reach out is not a ground for discipline. This is an important change which is needed and will ultimately benefit clients. Ballot Item B: Confidentiality of Information – Exception to Permit Disclosure to Secure Legal Ethics Advice This rule is close to the heart of all lawyers who provide ethics advice. In effect, this is not an actual change in a rule, but a confirmation that if you need to consult with ethics counsel (and almost every lawyer will have that need at some point during an active career), you are not breaking the confidentiality rules in securing that advice. This is a “no-brainer” improvement. Ballot Item C: Confidentiality of Information – Exception to Permit Disclosure to Prevent Client Death by Suicide We all know that there are certain exceptions to our duty to keep client confidences and unprivileged information. Those exceptions in DR 1.05 have generally involved the lawyer’s good faith belief that a crime or fraud is occurring or shall occur, or when the lawyer believes a failure to disclose will result in serious bodily injury to someone. In these days of mounting mental health issues, Texas is adopting the position that you may also reveal your good faith belief that your client is in danger of dying by suicide. REST ASSURED, however, that decision to reveal is yours under this provision. If you choose not to do so, that decision cannot be held against you or be a disciplinary matter. Ballot Item D: Conflict of Interest Exceptions for Nonprofit and Limited Pro Bono Legal Services During my career I have spent many nights giving
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advice at pro bono clinics. Such volunteerism is widely needed and gives me great personal satisfaction. But if you are in a big firm (or even a small one), you may be hesitant to discuss any legal matter at all, thinking that providing such limited advice might conflict out other lawyers, or even your entire firm. Well, have no fear. This rule addresses that issue, and gives guidance and protocols to observe, so that your pro bono services can remain within the rules. You still retain the duty —if you know of a clear existing conflict of interest at the inception of service— to refrain from providing those services. But this is a very helpful rule to the future of Texas lawyers, and this is not a new idea. Similar rules are already in effect in 48 other states and Washington, D.C. So far, Texas is the outlier. Ballot Item E: Information About Legal Services (Lawyer Advertising and Solicitation) We spent at least 18 months working on these advertising and solicitation rules. During that time, we considered every contributor’s comments and did our best to provide the lawyers of Texas with solid understandable improvements. However, I want to suggest that everyone look at the comments of Professor Vince Johnson, who will be comprehensively outlining the context and reasons for these changes in the February 2021 issue of the Texas Bar Journal. In short, the proposed rules continue to focus on the prevention of false or misleading communications, as well as improper influence in direct solicitations, but do so in a simplified manner that is designed to make compliance easier for lawyers. Ballot Item F: Reporting Professional Misconduct and Reciprocal Discipline for Federal Court or Federal Agency Discipline Many lawyers are not aware that several wide areas of federal practice, such as Patent Law and Immigration Law, operate their own grievance systems. This rule requires that a Texas lawyer who has been disciplined in one of these nonstate systems owes the same duty to report that discipline as owed when disciplined by a state system. I know from handling many complaints at the EOIR (The Executive Office for Immigration Review at the U.S. Justice Department), that it handles disciplinary actions involving immigra-
