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Discussion of the Proposed Disciplinary Rules and Texas Rules of Disciplinary Procedures1

By clAUde 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 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 representation; 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 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-

tion 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 which 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 annal 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 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 Texas 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 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’s 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, and 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, and past chair of the Texas Bar Foundation, Board of Legal Specialization, and College of the State Bar.

endnotes

1. This is an abbreviated version of an article written by Mr. Ducloux that will be printed in the Austin

Bar Journal and the San Antonio Bar Magazine in

January 2021.

The “Boeing Fix” – SB 943

By JoSeph r. lArSen

Perhaps the most longed for of the open government bills passed this last legislative session was the “Boeing Fix,” so called in honor of the 2015 Texas Supreme Court case of Boeing v. Paxton1 that allowed private parties and governmental bodies to withhold even the most basic information regarding how much governmental bodies were paying vendors. Boeing survived an attempted “fix” in the 2017 session that would have simply returned the law to its original intent. SB 943, rather, adds another layer over the original framework by setting out in some detail a new category of “contracting information” and specifically listing contracting information that should always be released.

The Texas Public Information Act states that all information is public unless it falls within an exception. The exception at issue in Boeing, titled “Information Relating to Competition or Bidding,” was meant to block a bidder for government work from getting copies of competitors’ bids before the contract was awarded.2 Attorney general open records opinions following enactment held that this section could not be claimed to protect a governmental body’s competitive advantage because government cannot be regarded as being in competition with private enterprise, and the purpose of the exception was to ensure competitive bids.

However, in 1991, the attorney general re-interpreted this provision to also create a de facto “governmental body trade secrets” exception that became ingrained over the years including a 2013 ruling that the governor could withhold information regarding his marketing meetings with businesses in other states on grounds his office was “competing against other states attempting to recruit businesses to relocate or expand.”3

The Boeing court quoted this ruling in support of its holding that the information Boeing sought to withhold about its lease with the Port Authority was at least as competitively valuable as that which the Attorney General’s Office had allowed the governor to withhold. Boeing further shaped this exception to undermine open government by (1) changing the burden from a “decisive” advantage to merely an “advantage”—which eliminated the need to show an ongoing competitive situation, and (2) allowing third parties contracting with the government to claim the bidding exception, even though there was already a separate trade secret exception for third parties.

Rather than stripping out all these administra-