Why I Voted YES in the Texas Rules Referendum (Part 3)

The Drafting and Referendum Processes

Believe it or not, there are people out there loudly urging everyone to vote against everything in the referendum. Some would have you believe their claims that “the referendum is illegal,” “these are the work of some nonpracticing lawyers who are clueless about the real world,” or “this is another example of big government reaching too far into the little guy’s life and pockets.”

The State Bar Act authorizes the Supreme Court to hold this referendum (actually mandates it for such rule changes). The Supreme Court is the body who would decide how to apply the State Bar Act. The Supreme Court approved the State Bar’s proposed ballot after reviewing the State Bar Act. So, (a) what is left that is “illegal?” and (b) who thinks the Supremes will rule their own actions as “illegal?” It is a weak complaint.

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. Solo practitioners, general practitioners, big firm partners, government lawyers, corporate counsel, criminal prosecutors and defenders, law professors, disciplinary counsel, disciplinary defense lawyers and public interest lawyers have all been on either the Task Force, the Committee or both over the seven year process.

As well, there have been numerous opportunities for feedback from the bar as well as the public (and a number of revisions came from the last feedback period). The proposed rules have been vetted by the Task Force, the Committee, the Supreme Court and the State Bar Board of Directors. It was an open process that involved numerous perspectives, many of which were conflicting.

No one special interest group got everything they wanted. Yet it seems that these groups have aligned themselves against the various rules until it appears that all of them oppose everything. It is easy to be against something; it is much more demanding to be for something or to propose specific alternatives. Too many of these detractors seem to be opposed simply because they were not directly in one of the groups.

Comments about the ballot itself

The 2011 State Bar Referendum ballot has six items. (See a sample ballot here.) All the changes are sorted into groups of rules.

A. Rules 1.00-1.05, 1.15 and 1.16. These are all of the rules in part 1 of the TDRPC with substantive changes EXCEPT the "Conflicts Rules."

B. Rule 1.07. This is a modified version of part of present Rule 1.06 that replaces the present Rule 1.07. This rule drew the most comments, so the Court set it apart.

C. Rules 1.06 and 1.08-1.12. The rest of the "Conflicts Rules."

D. Rules 1.13, 1.14 and 1.17. The two new rules ("no sex with clients" and "prospective client" rules) plus a substantive change to Rule 1.14 (Impaired client rule).

E. Rules 3.01-3.10, 5.01-5.07, 6.01-6.03 and 8.01-8.05. The rest of the rules with substantive changes.

F. Rules 2.01, 2.02, 4.01-4.04, 7.01-7.07 and 9.01. The rules with no substantive changes; only updates to cross-references or to the new definitions and terminology. (And yes, there are people out there actually campaigning to get you to vote against even these!)

Final Thoughts

I have seen, heard, and rebutted many charges against the referendum. Some were quite puzzling, like those who actually WANT the State Bar Act to fail sunset review next year (what do they think will take its place???). Others were misguided, like the lawyers who thought that rule 1.15 was raising the standards they must follow (and therefore showed everyone that they didn’t understand the current rule). Then there are a few who object to the time, effort and expense spent by the bar and its officers in drafting, proposing and explaining the changes (who else is supposed to do those things?).

I think there are plenty others who are simply oppositional. They are opposed to change or being told what they can and cannot do. Or they don’t want to actually read all the changes, but would prefer a couple of rules each year instead of a sweeping revision. Or worst of all: they have a “not made here” bias—if they didn’t personally write the language, then it must be bad.

The largest group by far, however, are those who have not really paid attention and probably do not plan to vote. Your bar association has worked a long time (remember the last referendum in 2000?) and your fellow bar association members have contributed hundreds of hours to the process with your interests in mind. I know; I saw those discussions first hand over the past year.

No one is urging you to vote for the changes simply because a lot of work went into them. But that work should be reassuring to you that these are not arbitrary changes by a detached bunch of bored bureaucrats. They are not perfect, but you can keep writing and emailing the Supreme Court to suggest changes and give examples of problems that come up as a result of the new rules or in spite of them.

Let’s move forward by first catching Texas up with the rest of the country. Then let’s continue to move ahead. Other issues such as multi-state and multi-national law practice loom ahead of us. How will Texas grapple with those if we cannot even bar sex with clients other than those we are related to or already involved with?

Texas lawyers are smart enough to see through the weak arguments and bold enough to take the steps needed to modernize our disciplinary rules. Vote FOR all the six items and help your profession continue to effectively regulate itself. By voting YES, you will make a difference. If you don't vote at all, you won't.