Ethics

Since 2003, the State Bar and the Texas Supreme Court have worked on revising the Texas Disciplinary Rules.  The proposed draft was completed in late 2010 and the Supreme Court separated the referendum on the proposed rules into six separate questions for the attorneys of Texas.  The current Texas Disciplinary Rules vary in significant ways from the 1983 Model Rules and the proposed rules also depart in many ways from the E2k version of the Model Rules.  Information about the referendum, the proposed draft, and the position of the Texas Supreme Court and State Bar can be found at http://www.texasbar.com/Content/NavigationMenu/ForLawyers/GrievanceInfoandEthicsHelpline/Rules_Update.htm .    

In the past, the challenge for the organized bar in a referendum on the rules involved educating the lawyers about the proposed rules and motivating them to get out and vote.  In this election, however, many prominent lawyers have publicly urged Texas lawyers to vote ?NO? on the proposed draft.  A number of criminal defense attorneys have urged attorneys to vote no because the proposed rules appear to require that flat fees be placed in client trust accounts during the pendency of the representation.  http://blog.bennettandbennett.com/ .  Three legal ethics experts (Burton, Herring, and McCormack) have collected their opinions against the proposed rules in a blog, www.texasrulescommentary.com . Much of their criticism stems from the drafters? decision to create new language and terminology not previously found in either the current Texas rules or the ABA Model Rules.  Many Texas lawyers are taking public positions for or against the proposed rules.  http://www.utcle.org/conf_pages/forms/HOW_WOULD_YOU_ADVISE_A_TEXAS_LAWYER_TO_VOTE.pdf

The proposed Texas Rules differ from the ABA Model Rules primarily on the following issues: (1) Rejecting Screening in the Prospective Client Rules, (2) Creating a New Rule on Multiple Client Representation that needs to be met along with the general conflicts rule, (3) Prohibiting lawyers from charging a ?Clearly excessive fee,? (4) Imposing obligations on lawyers who ?should have known? rather than those who had actual knowledge in many rules, and (5) Creating the concept of an ?affiliated lawyer? for purposes of conflicts management.  As the ABA with Ethics 20/20 seeks to harmonize the rules regulating American lawyers with a global marketplace, the Texas Supreme Court and State Bar have decided to craft different rules for conflicts, fees, and for other areas for the practice of law in Texas.  If the rules pass, it will be interesting to see whether the federal courts in Texas embrace the new Texas standard for lawyer conduct in their tribunals or whether they decide to adopt more fully the ABA standard.