Texas lawyers can vote now on a dozen proposed changes to the state’s disciplinary and professional conduct rules that cover everything from conflicts of interest to remote work.
Robert Tobey, a member of the state bar’s board of directors and chair of the discipline and client attorney assistance program that reviews ballot proposals, said the proposed amendments to the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure would modernize rules and address changes in the industry that resulted from the Covid-19 pandemic, such as remote work.
The voting period began April 1 and closes April 30. An email from the state bar with a voting link and instructions should have been sent to attorneys.
“You’ve got Covid changes, you’ve got the graying of the profession … and you’ve got some rules that other states have on various things that are in here that are better,” Tobey said. “And so it’s really the combination of all those things that lead to these rule changes. These will make life better.”
Most of the proposed changes mirror American Bar Association rules and are good for uniformity, said Frederick C. Moss, Southern Methodist University Dedman School of Law professor emeritus.
Moss was not involved in crafting the proposed rules; however, he previously served on the state bar committee that preceded the independent, Texas Legislature-created Committee for Disciplinary Rules and Referenda in 2017. This is the second referendum since that committee’s creation.
The committee is charged with reviewing disciplinary rules that were enacted in 1991, Tobey said.
Eight rule changes were approved in a 2021 vote, although only about 20 percent of lawyers cast ballots, Tobey said. He said he hopes to see a larger turnout this year.
“We have a right of self-governance that no other profession has,” Tobey said. “And voting is the key way to keep that right of self-governance, so we just need to be involved. We need to know what’s going on, and we need to exercise our right to vote.”
A controversial 2011 referendum, before the CDRR was created, attracted about 42 percent of lawyers to vote, Tobey said. That year, attorneys voted on a rule that would have prohibited attorneys from having sex with clients unless they were married or participating in a consensual relationship prior to the representation. The item overwhelmingly failed, Tobey said.
Some items on this year’s ballot build upon changes made after the 2021 vote. For example, a ballot item on the 2021 referendum dictated how lawyers can designate custodians to basically take over their practice, Tobey said. This year, ballot item L deals with how a lawyer can terminate the custodianship in the event he/she changes their mind.
Ballot item I is intended to address a way the Covid-19 pandemic changed the way attorneys practice law, Tobey said. For example, under Rule 5.05 of the Texas Disciplinary Rules of Professional Conduct, an attorney living in another state who is general counsel for a company in Texas may be guilty of unauthorized practice of law, Tobey said. The proposed amendment would allow for a lawyer who is not licensed in Texas to work for a company in Texas as an in-house lawyer.
Ballot items J and K, which would be new rules, also deal with remote work, Moss said.
Some ballot items could lead to a reduction in grievances filed and malpractice lawsuits, Tobey said. Ballot items C and E, for example, dictate situations that require lawyers to get informed consent from former, current and prospective clients.
A prospective client who consults with a lawyer and shares confidential information, but ultimately does not hire the lawyer, must give informed consent for the firm to represent someone with an adverse interest and the lawyer must be screened off from the case if proposed rule 1.18 passes. The affected client must also give consent, the ballot item states.
Proposed rule 1.09 also requires lawyers to get consent from a former client to represent another person with adverse interests.
“Getting things in writing will protect you from whatever might happen in the future, and so these rules bake a lot of that in, in terms of these procedures,” Tobey said.
A change proposed in ballot item D that would allow for screening lawyers to safeguard against conflicts of interests so that whole firms are not disqualified from representation is probably the most important, Moss said. Texas is in the minority of states that don’t permit screening in such situations.
Tobey points to a 1988 Dallas Court of Appeals case, Petroleum Wholesale vs. Marshall, in which a firm was disqualified from a case after it had hired an associate from an opposing counsel firm where the associate participated in confidential conversations about the case, even though the hiring firm said it took careful steps to make sure the newly hired associate wasn’t involved in the case for them.
The change would bring “Texas into the mainstream of our nation’s ethics rules,” Moss wrote in public comments. The practice of screening is allowed for former government lawyers and judicial employees and is used in other states, Moss noted.
“(T)he practice of law today bears little resemblance to the horse-and-buggy vision of the practice on which many of rules, the no screening rule included, are predicated,” Moss wrote. “Lawyers today have branch offices all over the state, the nation, and the world. It simply makes no sense to disqualify all the lawyers in a firm — worldwide — because of one firm member’s representation of a former client is the same or a substantially related matter.”