Why I Voted YES in the Texas Rules Referendum (Part 1)

(Full up-front disclosure: For just over a year, I have been on the Texas Bar’s standing Committee on Texas Disciplinary Rules of Professional Conduct. That year was the 7th in the current effort to update the TDRPC, so my work was limited generally to tweaks and revisions that were requested by the Texas Supreme Court after public comments and bar member feedback.)

Texas is currently holding a referendum for the members of the Texas Bar Association to vote for or against a number of proposed changes to the Texas Disciplinary Rules of Professional Conduct. These amendments will revise rules that have been in effect for 20 years. (More information, including a link to the electronic ballot are here.)

I voted for all of the referendum ballot items because:

1. Texas needs the new rules 1.13 and 1.17.

2. The changes to rule 1.05 are a vast improvement over the present version.

3. The new rule language removes several traps and provides clearer guidance to lawyers who are trying to abide by them.

4. These rules are the combined work product of dozens and dozens of my fellow members of the State Bar of Texas and the result of extensive discussion, debate and input from lawyers representing every corner of our diverse bar.

In this and subsequent posts, I will expand on those reasons. I will also take on some of the objections raised by a few people who are very loudly campaigning against the changes.

A bit of history

The current rules, with a few exceptions, were adopted in 1990. There were updates to the “advertising rules” in 2005 to adapt them to the new age of internet information and communication. Otherwise, the changes to society and the legal profession in the past 20 years have occurred with essentially no change to the rules that determine how a lawyer in Texas may avoid disciplinary action*.

On top of that, the problems with the rules that were adopted in 1990 have not been corrected. Some of those rules turned out to be mistakes, but efforts to fix them about 10 years ago failed due to an insufficient number of lawyers voting**.

Yes, there have been changes all around the legal profession. The American Bar Association, recognizing both that there was significant room for improvement in their Model Rules and that society and our standards had changed a lot, commissioned the “Ethics 2000” project to propose changes. Including the Ethics 2000 revisions, the Model Rules—the foundation for many of Texas’ TDRPC—have been amended 30 times since 1990.

How has our legal profession changed in Texas? Just a few of the significant changes were Tort Reform legislation, the rise of mass tort cases, a sharp increase in multi-district litigation, major mergers of law firms across the country, a growing diversity in our bar members, and the impact of technology on both lawyers and their clients as evidence by both electronically-stored information and breaches of confidentiality by unauthorized release of data that was not intended for disclosure.

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* Though the TDRPC rules are sometimes confused with other areas of law, such as professional malpractice, fiduciary duty, and disqualification of counsel, those areas of law are distinctly different. Breach of any of them does not necessarily subject a lawyer to a disciplinary action, and vice versa.
** A majority of those who voted were in favor of the changes; there is no reliable measurement of whether the abstainers were against the changes or simply apathetic.