Proposed Texas Disciplinary Rules and Texas Rules of Disciplinary Procedure

What They Are and What They Do

By Claude E. Ducloux

My 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.

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?

Input from Lawyers

The CDRR also benefited from extremely thoughtful input from Texas lawyers, who submitted hundreds of public comments during the process. I could never do justice to all the input, but some real heroes who took a great deal of time to provide insight, advice, and recommendations include Professor Bob Schuwerk, Dickie Hile, Zac Wolfe, Chuck Herring, and Jason Panzer. The committee considered hundreds of proposed edits and implemented many of them in improving the rules throughout the process. Our staff counsel, Brad Johnson, has also been recommended for sainthood.

Modernizing: A Worthy Goal

Moving these rules into modern law practice continues to be a priority—communications are faster and more frequent than forty years ago. Online messaging has completely changed how we (and society) look at advertising. So, we concentrated on honesty, applicability, and consumer protection in modernizing the rules—not on bureaucracy or minutiae. Language was modernized wherever applicable. Thus, a term like “internet-based” was revised to “online” to match modern parlance.

We were also motivated to improve the Rules of Disciplinary Procedure for three overarching reasons. First, to fix some rules that often created more confusion than assistance. Second, to clarify the rules regarding reciprocal discipline, being mindful that several federal areas of practice operate their own disciplinary systems. But the third, and increasingly important, reason was to address the impending retirement of tens of thousands of attorneys in Texas and nationwide, all too often with little or no planning, and the chaos that often results for that lawyer’s family and community. This militated toward improving the Rules of Disciplinary Procedure to allow for the appointment of custodian attorneys who could help a lawyer retire or close down a practice, and yet be covered by the same protections as a court-appointed custodian, thus giving lawyers more options for assistance in that endeavor.

Summary of Proposed Amendments

Below is the official Summary of the Rules, which explains the eight proposals, known as Ballot Items A through H. Following each summary, I have added my commentary as Claude’s Comments. Let’s get started:

Ballot Item A: Scope and Objectives of Representation; Clients with Diminished Capacity

The proposal deletes Rule 1.02(g) of the Texas Disciplinary Rules of Professional Conduct and adds Proposed Rule 1.16 of the Texas Disciplinary Rules of Professional Conduct. Proposed Rule 1.16 is intended to provide improved guidance when a lawyer represents a client with diminished capacity. Among its provisions, Proposed Rule 1.16 permits a lawyer to take reasonably necessary protective action when the lawyer reasonably believes that a client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client’s own interest. Proposed Rule 1.16 provides a non-exhaustive list of actions a lawyer may be authorized to take, including informal consultations that may be prohibited under the current Rules.

Claude’s Comments: 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, guiding us and equipping us with additional tools to handle situations that put the client or the client’s estate at risk. This could include necessary consultations with medical providers or even family members which might otherwise breach the lawyer’s duty of confidentiality. This is an important change that is needed and will ultimately benefit clients.

Ballot Item B: Confidentiality of Information – Exception to Permit Disclosure to Secure Legal Ethics Advice

Proposed Rule 1.05(c)(9) of the Texas Disciplinary Rules of Professional Conduct specifically clarifies that a lawyer is permitted to disclose confidential information to secure legal advice about the lawyer’s compliance with the Texas Disciplinary Rules of Professional Conduct.

Claude’s Comments: 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

Proposed Rule 1.05(c)(10) of the Texas Disciplinary Rules of Professional Conduct permits a lawyer to disclose confidential information when the lawyer has reason to believe it is necessary to do so in order to prevent a client from dying by suicide.

Claude’s Comments: 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.

Ballot Item D: Conflict of Interest Exceptions for Nonprofit and Limited Pro Bono Legal Services

In order to facilitate the provision of pro bono legal services, Proposed Rule 6.05 of the Texas Disciplinary Rules of Professional Conduct creates narrow exceptions to certain conflict of interest rules when a lawyer provides limited advice and brief assistance on a pro bono basis. For purposes of Proposed Rule 6.05, “‘limited pro bono legal services’ means legal services that are: (1) provided through a pro bono or assisted pro se program sponsored by a court, bar association, accredited law school, or nonprofit legal services program; (2) short-term services such as legal advice or other brief assistance with pro se documents or transactions, provided either in person or by phone, hotline, internet, or video conferencing; and (3) provided without any expectation of extended representation of the limited assistance client or of receiving any legal fees in that matter.” This provision, in various forms, has previously been adopted by forty-eight other states and the District of Columbia.

Claude’s Comments: During my career I have spent many nights giving 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. As stated above, similar rules are already in effect in forty other states and Washington, DC. So far, Texas is the outlier.

Ballot Item E: Information About Legal Services (Lawyer Advertising and Solicitation)

This comprehensive proposal amends Part VII of the Texas Disciplinary Rules of Professional Conduct by simplifying and modernizing lawyer advertising and solicitation rules. The proposal reduces Part VII from seven rules to six rules (numbered 7.01 to 7.06). Among other changes, the proposal: (1) permits a lawyer to practice law under a trade name that is not false or misleading; (2) defines “advertisement” and “solicitation communication”; (3) simplifies disclaimer and filing requirements; (4) adds exemptions to certain solicitation restrictions for communications directed to lawyers, persons with whom the lawyer has a close personal or prior business or professional relationship, and persons known by the lawyer to be experienced users of the type of legal services involved for business matters; (5) expands exemptions to filing requirements; and (6) expressly addresses social media communications. The proposal maintains the prohibition on false or misleading communications about the qualifications or services of a lawyer or law firm.

Claude’s Comments: We spent at least eighteen months working on these advertising and solicitation rules. During that time, we considered everyone’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 Vincent 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. An additional detailed summary of these and other proposed changes is available at texasbar.com/rulesvote.

Ballot Item F: Reporting Professional Misconduct and Reciprocal Discipline for Federal Court or Federal Agency Discipline

The proposal amends Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct and Rules 1.06 and 9.01 of the Texas Rules of Disciplinary Procedure by extending existing selfreporting and reciprocal-discipline provisions to cover certain professional discipline by a federal court or federal agency. The proposal specifically limits “‘discipline’ by a federal court or federal agency” to mean a public reprimand, suspension, or disbarment. The proposal clarifies that the term does not include a letter of “warning” or “admonishment” or a similar advisory by a federal court or federal agency. The provisions also do not apply to mere procedural disqualification in a particular case.

Claude’s Comments: 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 provides that a Texas lawyer who has been disciplined in one of these non-state 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 Immigration lawyers. Often minor infractions can be handled with warning letters or admonishments. The CDRR worked hard on this rule to ensure that the type of discipline that would trigger this reporting had to be related to professional misconduct, meaning public reprimand, suspension, or disbarment. Minor infractions, such as failure to timely pay annual fees or bar dues, or letters of admonishment or warning, or disqualification as counsel are certainly NOT reportable acts. This rule was actually requested by, and its development was discussed with the Chief Disciplinary Counsel’s office, as an improvement to the existing rule.

Ballot Item G: Assignment of Judges in Disciplinary Complaints and Related Provisions

These proposed rule changes simplify the assignment of judges, as well as address inconsistencies between current Rule 3.02 of the Texas Rules of Disciplinary Procedure and other statutes and rules already in place, whenever a respondent attorney in a disciplinary case chooses to have the matter heard by a district court. The proposal amends Rules 3.01, 3.02, and 3.03 of the Texas Rules of Disciplinary Procedure by: (1) transferring judicial assignment duties from the Supreme Court of Texas to the Presiding Judges of the Administrative Judicial Regions when a respondent in a disciplinary complaint elects to proceed in district court; (2) relaxing geographic restrictions on judicial assignments in disciplinary complaints; and (3) clarifying and updating various procedures involved in the assignment of judges in disciplinary complaints.

Claude’s Comments: This, again, is a change to a Rule of Disciplinary Procedure, rather than disciplinary conduct. When the Chief Disciplinary Counsel finds “just cause” to proceed with a Disciplinary Action, the respondent lawyer must choose to have the matter heard by a panel or to have the matter filed in district court in the Respondent’s county of principal practice. In those few cases where the Respondent chooses to proceed in court, the existing Rule of Disciplinary Procedure has the Supreme Court sending an order to a district judge assigning him or her to hear the case. It may not surprise you to know that, often, the district judge with a busy hometown docket is less than thrilled to be summoned hundreds of miles away to hear a disciplinary case. The purpose of this rule change is to make that process easier and more relevant. This allows the Presiding Judge of the Respondent’s Administrative Judicial District to carefully choose an appropriate judge for the case and softens the geographical requirements so that a nearer judge who is appropriate for the case can be appointed. Also, the rules for objecting or recusal follow Texas law more consistently. The existing rule conflicts with established rules for such processes.

Ballot Item H: Voluntary Appointment of Custodian Attorney for Cessation of Practice

Proposed Rule 13.04 of the Texas Rules of Disciplinary Procedure authorizes a lawyer to voluntarily designate a custodian attorney to assist with the designating attorney’s cessation of practice and provides limited liability protection for the custodian attorney.

Claude’s Comments: For many years, the Disciplinary Rules of Procedure have included (what I call) “emergency provisions” in Rules 13.01, 13.02, and 13.03 for a court to appoint one or more custodians (similar to what we’d call a “conservator”) to assume jurisdiction over an attorney’s practice when that attorney is unable (for a number of reasons outlined in Rule 13.02) to continue the practice. The benefit of that custodianship is that the appointee(s) are protected from claims except for “intentional misconduct or gross negligence.” The theory is that a custodian undertaking the often harried, messy, and thankless job of closing down a practice should not be worried about being sued for those efforts, short of gross negligence. It is a very good and useful tool. So, why not give lawyers an additional voluntary option to create those custodianships and save on court time and costs? Under this new Rule, an attorney can voluntarily create the same custodianship, and the custodian accepting that duty has the same protections as the court-appointed kind. Remember, the custodian’s purpose has to be to close down the practice, and if he/she assumes the representation of a client or clients going forward, those protections will not apply to such ongoing representations. But the rule gives great flexibility to the process of helping lawyers retire or cease practice and is a great tool for the future.

Please review all the rules. I hope this article and all the information you read will give you some good perspectives, and . . . reasons to vote YES!

Claude Ducloux is a past President of the Austin Bar Association, past Chair of the Texas Bar Foundation, Board of Legal Specialization, and College of the State Bar. These comments by Claude E. Ducloux, a Member of the Supreme Court Committee on Disciplinary Rules and Referenda, are not the official comments of that Committee.