Here is a "guest post" by Professor Robert Schuwerk to the latest of a barrage of one-way messages orchestrated by Chuck Herring, Amon Burton, Jim McCormack and a few others whose primary mission appears to be to block all changes at all costs (allegedly because Herring wasn't on either drafting committee). Because Herring, et al., do not permit opposing viewpoints to go out via their spam system, I post these rebuttals. However, unlike the Herring posse, I DO permit comments and disagreement on this blog.
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This is a dissent from the views expressed below concerning the pending referendum. Like many pieces that have appeared slamming the proposed new rules, it is full of florid criticisms of the rules and of the Bar itself that simply are not valid.
Before responding to particular objections, it is important to keep a couple of things in mind. The first is that there are over fifty rules involved in this referendum. All of the criticisms that I have seen—and I have seen most of them—focus on about five or six of those rules, or about 10%. NOTHING bad is said about the others. Thus a no vote represents a rejection of the lion’s share of this massive project even though no one objects to it.
The second is that critics of the present rule—whose views are behind most of those expressed by other lawyers below—fail to explain how (a) the overwhelming number of Texas lawyers who were actually involved in this project—practicing lawyers just like you—managed to be talked into voting for rules as flawed as those objectors say these rules are, (b) how the board of directors of the Bar, who had all of the opponents’ criticisms before them, managed to be convinced to vote for them unanimously, and (c) how the Supreme Court of Texas, who also had all of those criticisms before them, decided to approve the rules in the form they appear in the referendum, also unanimously. Perhaps all of those lawyers are just stupid or misguided, and only the three lawyers who have spearheaded the campaign against these rules have seen the truth of the matter. On the other hand, perhaps it is the other way around.
Now to some of the specific objections made below. A concession to the shortness of life prevents a response to each one individually.
The old rules were working fine, why change them? This argument is misleading, because it implies that rules were overturned wholesale. That is not so. Many of the current Texas rules are carried forward verbatim into the proposed new ones. No one has objected to those rules as far as I can determine. However, where changes were made, they were done because problems with the existing rule were called to the attention of the two drafting bodies by practicing lawyers and the amendments made to the rules were undertaken in order to remedy those specific problems. All of this is detailed in reports submitted to the Supreme Court of Texas by the TDRPC Committee of the Bar. Nothing was changed just to have something to do.
If these rules were meant to bring us closer to the ABA, they didn’t do a very good job. Not so. There are literally dozens of changes to the proposed rules to bring them in closer alignment to the ABA. For every single rule, its ABA counterpart, if there was one, was carefully studied and, if it appeared to be the better choice, it was adopted. On the other hand, Texas has traditionally had a different view than the ABA as to what the best policy is in certain areas, and in some instances it was decided to adhere to the Texas policy. For example, Texas has always been more reluctant to discipline lawyers for charging excessive fees than the ABA (although each follows the same standard in tort), and it was decided to retain that approach, although under a somewhat different standard than used now. Similarly, Texas has always been more willing to allow lawyers to fund litigation without obliging the client to repay such advances than has the ABA, and once again it was decided to keep that difference in place this time around. The point is that decisions to depart from the ABA were not the result of careless oversights but rather reasoned policy judgments that the Texas approach was, and remained, preferable to that taken by the ABA.
The rules are complicated to the point of being unintelligible. Part of the complication of the new rules (which, bear in mind, is in actuality only a handful of all of such rules) is that they are new. In all honesty, however, another part of the “complication” of the new rules is that their critics have misstated their intended meaning and effect, leading many to say in substance, “Gee, I didn’t get that out of reading them.” Sadly, all too often, that is because the “that” isn’t really there. The proposed new rules are in many instances far clearer than their predecessors, and where they are not, they are more complicated by necessity—that is, because they need to be in order to address a specific problem with the present rules called to the attention of the drafters—and in such cases the comments go out of their way to explain to lawyers how to navigate those complexities. Which brings me to the next commonly hear criticism …
Lawyers have been disenfranchised by not being allowed to vote on the comments. This argument has no basis in terms of how referenda have been conducted in Texas over the last twenty plus years, where the practice has always been that disciplinary rules get voted on, but comments to them do not. This was true in the 1989 referendum on the current rules, it was true in the 1994 referendum on amendments to the advertising rules, it was true in the 2004 referendum on the forwarding fee rule and other amendments to the advertising rules, and it is true today. The reasons for this are two-fold: (a) lawyers can’t be disciplined for violating a comment (or the preamble for that matter, which also isn’t a part of the referendum), and (b) if there is anything wrong with a comment, it can be fixed by the Board of Directors of the Bar without the approval of anyone. Anyone unhappy with a comment should write the TDRPC Committee and ask to have it changed. That is part of what they do.
These amendments are a direct attack on lawyers charging flat fees or nonrefundable retainers. These rules do not alter current disciplinary law in these areas. They do not absolutely prohibit flat fees. They do not absolutely prohibit nonrefundable retainers. What appears to have stirred up anxiety here is that the comments point out that such fees can be problematic in certain circumstances according to case law, a warning not contained in current comments. However, this is not an effort to expand the rule, as some have taken it to be, so as to prohibit such fees, but rather a caution to lawyers that they cannot rely on contractual language in all circumstances so as to keep a fee paid in advance. That’s what case law says. To vote against this rule for making lawyers aware of that in a comment would be a classic case of “shooting the messenger.”
What is the Bar doing advocating for these rules anyway? This is a strange argument. What is wrong with the Bar’s employees taking positions on the pending rules, when those rules have been unanimously endorsed by the Bar’s board of directors? What is wrong with chief disciplinary counsel for the Bar responding to an (unfounded) claim that the new rules would cripple disciplinary enforcement? Who better to respond? Is free speech only for opponents of the referendum, while others must be muzzled? The only possible issue here is an argument that bar dues fund the Bar, so it shouldn’t be playing an active role in the referendum (a so-called Keller issue). How-ever, that is a complete red herring. While there are restrictions on a mandatory bar like ours using membership dues to fund general political or policy positions, those restrictions do not apply to matters of bar discipline, which are specifically approved of as appropriate expenditures under Keller. This of course makes perfect sense. It would be rather bizarre if the Bar could not take a position concerning what constitutes appropriate self-regulation of its members.
In my opinion, as one of the drafters of both the current rules and the proposed new ones, it is not even a close question as to whether the new version is superior. Beyond any reasonable doubt, it is. I urge a YES vote.
This is a dissent from the views expressed below concerning the pending referendum. Like many pieces that have appeared slamming the proposed new rules, it is full of florid criticisms of the rules and of the Bar itself that simply are not valid.
Before responding to particular objections, it is important to keep a couple of things in mind. The first is that there are over fifty rules involved in this referendum. All of the criticisms that I have seen—and I have seen most of them—focus on about five or six of those rules, or about 10%. NOTHING bad is said about the others. Thus a no vote represents a rejection of the lion’s share of this massive project even though no one objects to it.
The second is that critics of the present rule—whose views are behind most of those expressed by other lawyers below—fail to explain how (a) the overwhelming number of Texas lawyers who were actually involved in this project—practicing lawyers just like you—managed to be talked into voting for rules as flawed as those objectors say these rules are, (b) how the board of directors of the Bar, who had all of the opponents’ criticisms before them, managed to be convinced to vote for them unanimously, and (c) how the Supreme Court of Texas, who also had all of those criticisms before them, decided to approve the rules in the form they appear in the referendum, also unanimously. Perhaps all of those lawyers are just stupid or misguided, and only the three lawyers who have spearheaded the campaign against these rules have seen the truth of the matter. On the other hand, perhaps it is the other way around.
Now to some of the specific objections made below. A concession to the shortness of life prevents a response to each one individually.
The old rules were working fine, why change them? This argument is misleading, because it implies that rules were overturned wholesale. That is not so. Many of the current Texas rules are carried forward verbatim into the proposed new ones. No one has objected to those rules as far as I can determine. However, where changes were made, they were done because problems with the existing rule were called to the attention of the two drafting bodies by practicing lawyers and the amendments made to the rules were undertaken in order to remedy those specific problems. All of this is detailed in reports submitted to the Supreme Court of Texas by the TDRPC Committee of the Bar. Nothing was changed just to have something to do.
If these rules were meant to bring us closer to the ABA, they didn’t do a very good job. Not so. There are literally dozens of changes to the proposed rules to bring them in closer alignment to the ABA. For every single rule, its ABA counterpart, if there was one, was carefully studied and, if it appeared to be the better choice, it was adopted. On the other hand, Texas has traditionally had a different view than the ABA as to what the best policy is in certain areas, and in some instances it was decided to adhere to the Texas policy. For example, Texas has always been more reluctant to discipline lawyers for charging excessive fees than the ABA (although each follows the same standard in tort), and it was decided to retain that approach, although under a somewhat different standard than used now. Similarly, Texas has always been more willing to allow lawyers to fund litigation without obliging the client to repay such advances than has the ABA, and once again it was decided to keep that difference in place this time around. The point is that decisions to depart from the ABA were not the result of careless oversights but rather reasoned policy judgments that the Texas approach was, and remained, preferable to that taken by the ABA.
The rules are complicated to the point of being unintelligible. Part of the complication of the new rules (which, bear in mind, is in actuality only a handful of all of such rules) is that they are new. In all honesty, however, another part of the “complication” of the new rules is that their critics have misstated their intended meaning and effect, leading many to say in substance, “Gee, I didn’t get that out of reading them.” Sadly, all too often, that is because the “that” isn’t really there. The proposed new rules are in many instances far clearer than their predecessors, and where they are not, they are more complicated by necessity—that is, because they need to be in order to address a specific problem with the present rules called to the attention of the drafters—and in such cases the comments go out of their way to explain to lawyers how to navigate those complexities. Which brings me to the next commonly hear criticism …
Lawyers have been disenfranchised by not being allowed to vote on the comments. This argument has no basis in terms of how referenda have been conducted in Texas over the last twenty plus years, where the practice has always been that disciplinary rules get voted on, but comments to them do not. This was true in the 1989 referendum on the current rules, it was true in the 1994 referendum on amendments to the advertising rules, it was true in the 2004 referendum on the forwarding fee rule and other amendments to the advertising rules, and it is true today. The reasons for this are two-fold: (a) lawyers can’t be disciplined for violating a comment (or the preamble for that matter, which also isn’t a part of the referendum), and (b) if there is anything wrong with a comment, it can be fixed by the Board of Directors of the Bar without the approval of anyone. Anyone unhappy with a comment should write the TDRPC Committee and ask to have it changed. That is part of what they do.
These amendments are a direct attack on lawyers charging flat fees or nonrefundable retainers. These rules do not alter current disciplinary law in these areas. They do not absolutely prohibit flat fees. They do not absolutely prohibit nonrefundable retainers. What appears to have stirred up anxiety here is that the comments point out that such fees can be problematic in certain circumstances according to case law, a warning not contained in current comments. However, this is not an effort to expand the rule, as some have taken it to be, so as to prohibit such fees, but rather a caution to lawyers that they cannot rely on contractual language in all circumstances so as to keep a fee paid in advance. That’s what case law says. To vote against this rule for making lawyers aware of that in a comment would be a classic case of “shooting the messenger.”
What is the Bar doing advocating for these rules anyway? This is a strange argument. What is wrong with the Bar’s employees taking positions on the pending rules, when those rules have been unanimously endorsed by the Bar’s board of directors? What is wrong with chief disciplinary counsel for the Bar responding to an (unfounded) claim that the new rules would cripple disciplinary enforcement? Who better to respond? Is free speech only for opponents of the referendum, while others must be muzzled? The only possible issue here is an argument that bar dues fund the Bar, so it shouldn’t be playing an active role in the referendum (a so-called Keller issue). How-ever, that is a complete red herring. While there are restrictions on a mandatory bar like ours using membership dues to fund general political or policy positions, those restrictions do not apply to matters of bar discipline, which are specifically approved of as appropriate expenditures under Keller. This of course makes perfect sense. It would be rather bizarre if the Bar could not take a position concerning what constitutes appropriate self-regulation of its members.
In my opinion, as one of the drafters of both the current rules and the proposed new ones, it is not even a close question as to whether the new version is superior. Beyond any reasonable doubt, it is. I urge a YES vote.
Robert Schuwerk
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Thanks to Prof. Schuwerk for his efforts to discredit the deceptive comments out there that serve only to confuse, rather than further honest debate. How about it, Herring, et al.? Why not send out Schwerk's reply on your list?
Here are my prior posts on this referendum:
Part One
Part Two
Part Three
Post-script
Post-Post-Script
1 comments:
And the results are in! Here is what the rest of the country thinks of Texas lawyers now:
http://www.abajournal.com/news/article/texas_lawyers_reject_ban_on_sex_with_clients/
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