Rules 1.13 and 1.17
Proposed rules 1.13 and 1.17 are alone almost worth all the other changes combined. All other self-regulating professions in this state already prohibit sex with clients. Why have the lawyers taken so long to do so? We know it is wrong. We know why it is wrong. Yet we have never had a specific rule. Texas needs rule 1.13.
When a lawyer is under investigation for inappropriate relations with his or her client, disciplinary counsel will tell you, the first defense raised is the pitiful, “well, it isn’t in the rules that you can’t do that.”
Make a statement. Make it clear. This rule is important because we have the public’s best interests in mind and we want to make sure every new member of our bar association understands where the lines are.
Proposed rule 1.17 works as much to protect lawyers from actions in bad faith by people who want to cause conflicts of interests as clients who only want to find out if a lawyer will represent them. The so-called “pasta conflicts” caused when someone unilaterally dumps confidential information in the lap of a lawyer and then claims that the “pasta” stuck to that lawyer, forever tainting him and his entire firm, need to be addressed.
With proposed rule 1.17, lawyers can caution “prospective clients” to only tell enough information to let the lawyer determine whether she can or wants to accept the case. If the lawyer truly wants to keep her options open to represent another party in the same matter, she has to tell the prospective client before any discussion begins. That way, everyone is clear about what is going on at the very beginning of the discussion.
Rule 1.05
The changes to Rule 1.05 are a vast improvement over the present version. The new rule cuts out the concepts founded on the rules of evidence and by doing so, makes a very crooked path much straighter.
One objection to this and other rules is that present rule 1.05 isn’t considered “broken,” so it shouldn’t need to be “fixed.” Take out the present version and place it next to the proposed rule. You can immediately see the improvement. Don’t vote against these changes, as one objector urged, because you want to keep everything the same forever. The Supreme Court agrees that rule 1.05 needs help; let’s get it done this time.
Better Rules For All
The new rule language removes several traps and provides clearer guidance to lawyers who are trying to abide by them. You may have seen the protests about how there are “65,000 words” in the rules and comments. What kind of complaint is that?
We are lawyers. It is our chosen profession. We work with words for a living! We apply law to facts to achieve our clients’ goals. Are they saying that they are afraid of so many words?
The “65,000 words,” by the way, are not being ADDED to the present rules and comments. They are replacements for the most part. I wonder how many words are already in there? Were there too many for these objectors?
These changes were all made with consistent rules of draftsmanship, including:
(a) the rule language must clearly identify the action that is prohibited or permitted as an exception to another prohibition
(b) there should be no traps for the unwary and no strict liability (like present rule 1.15 has)
(c) lawyers who are trying to abide by the rules should be able to see where the lines fall so they do not unintentionally cross them
(d) lawyers who seek to intentionally harm others should be prevented from doing so by disciplinary action
Read the proposed changes side-by-side with the present rules (the redlined version is just not enough). Look at the new language and decide for yourself: will our profession be better off—and perceived by the public to be more responsible—with these changes as a whole or without any of them.
Most of the anti-everything objectors are hoping you won’t do that.
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