Proposed Texas Disciplinary Rules and Texas Rules of Disciplinary Procedure:
What They Are and What They Do
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By Claude E. 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 hometown district court. Since then, I have stayed immersed in disciplinary rules and procedures, handling hundreds of complaints, and advising lawyers and firms about how these rules and procedures are interpreted and applied. To my good fortune, I was appointed by the Supreme Court of Texas to the Committee on Disciplinary Rules and Referenda (“CDRR”) upon its creation by the most recent State Bar legislative renewal. Since January 1, 2018, I have worked enthusiastically with others to modernize the Disciplinary Rules and the Rules of Disciplinary Procedure, which have long suffered from obsolete applications and an unmet need for change. Texas lawyers now are going to decide if the CDRR’s three years of hard work has paid off. The first step toward ratifying the proposed new rules was the Supreme Court’s September 29, 2020, order which will allow Texas lawyers to vote on each proposed change separately in a February 2021 Rules Referendum. Before that happens, let me give you some context for the changes, and my own perspective on this important work and how we went about it.
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Our Committee Work First and foremost, this was the single hardest-working committee of my forty-three-year career. Every member of the CDRR took our charge very seriously. The specter of previous referenda failures was definitely a motivator for me. We met monthly (not quarterly). I made sure I never missed a meeting, and between meetings, subcommittees exchanged untold numbers of emails discussing ideas, new texts, and proposed improvements at full speed. Our Chair, Lewis Kinard, was the model of support, decorum, and even-handedness: a calm and thoughtful leader. Likewise, Professor Vincent R. Johnson, was our walking Hornbook of Disciplinary Rule knowledge. If I contributed anything, it was four decades of practicing law, working with grievance committees, and understanding how our present rules worked (and did not) for clients or lawyers, or both, and how they should be improved.
Objectivity and Perspectives The makeup of the CDRR, with lawyers and non-lawyers, brought in multiple perspectives and opinions on efficacy and comprehension of any proposed changes. As I said, my focus always was to review any proposed rule changes objectively, from the perspective of a real practicing attorney with a busy general practice. Do I understand the rule? Does this proposed change make sense for the profession and the public? Does it unnecessarily complicate my law practice? And, finally, can I teach others what the rule means and how it applies?
