I was not going to post on this topic again, but I received an email that listed 5 reasons the author voted "no" and realized there was an opportunity to rebut the arguments and deceptive remarks.
I will take each point one-by-one.
Opponent's Point 1: "Several of the proposed disciplinary rules are worse and more confusing than the current rules—they seem likely to cause problems for both lawyers and clients."
First of all, there are no specifics here. This sounds like the same "they aren't all perfect, so reject them all" argument. The logic there escapes me. My grandmother used to say, "don't throw the baby out with the bathwater" to such arguments. Take the converse: if several of the present rules are confusing and cause problems today, is that alone enough to discard them all and replace them?
Opponent's Point 2: "The proponents of these new rules and the State Bar have ignored the cost of these proposed rules. The new rules clearly would cost time and money for lawyers and clients—that would be true of any new rules—but these proposals do not create obvious improvements to outweigh those costs. And yet, the one topic that the folks pushing these rules always avoid is "what will these rules cost?" Why?"
Again, no specifics; only general, unsubstantiated statements that appear to be designed to evoke fear, not reasoning. One could just as easily argue that the present rules cost time and money for lawyers, given that (a) we have to learn them initially, (b) we have to frequently review them to look up particular issues, (c) we have ethics CLE requirements intended to help us understand them and (d) if any of us are charged with a violation, we have to spend time and even money on defense counsel to fight them. Where is the meat to this point?
In addition to unspecified "costs" that may or may not exceed the costs of the present rules, there is the unsupported cost-benefit analysis that benefits of the proposed rules do not outweigh those "costs." By what measure? Which benefits are not enough to merit the inconvenience of change? Removing the strict-liability trap on lawyers in the current Safekeeping rule seems like a good benefit to me. Adding a clear prohibition against sex with clients seems like it will benefit the public and the legal profession's image. What costs outweigh those benefits? The opponents can't tell you because the argument is specious.
Opponent's Point 3: "The proposed rules would change many important parts of our law practices—what clients we can accept, how we analyze conflicts of interest, when we can be disqualified from representation, what fees we can charge, how we disburse settlement funds, what client information is "confidential," etc. Each of those changes creates risks for lawyer and clients—and I don't see the corresponding benefits."
This one is chock-full of misleading statements. If the change to "what clients we can accept" refers to people with whom we want to have sex, then that is correct. So? The "disqualified from representation" shows that the author does not know the difference between disciplinary rules and disqualification law. The refrain "what fees we can charge" is bogus: there are no changes to the "flat fee" rules and the difference between "illegal fee or unconsionable fee" and "clearly excessive" is meaningless when you read the respective definitions and factors determining either.
If I were asserting that "how we disburse settlement funds" was changing for the worse, I should be embarrassed. The change actually helps the lawyer and the client in situations where some third party may have a theoretically-possible but unreasonable claim to funds in the lawyer's possession. The lawyer can ignore the specious claims and give funds to the client faster. The author is unaware of the intended benefits, however.
Opponent's Point 4: "Our current rules have worked fine for 20 years. Have you ever heard anyone say "Oh, our current rules are a real problem and we absolutely must change them"? Moreover, we have court decisions and ethics opinions explaining how to use and interpret our current rules. If we adopt flawed rules, how long will it take before the Bar and the courts fix those? Another 20 years? Can we afford to vote for proposals as poorly drafted as these? Wouldn't it be better to start over?"
Isn't this a reprise of the "why change? I am comfortable with what we already have?" attitude? Just because some of our fellow bar members know the present rules is not a valid reason to leave them alone forever (which is not, if you read carefully, what the author is advocating). What other area of law stays the same despite dramatic changes in society, membership and the regulatory environment? The reason these rules have taken so long to revise is NOT because they have worked fine for 20 years: it is because the last referendum failed due to insufficient votes cast and the Supreme Court sent the process back to the drawing board in light of the major changes in the ABA's Model Rules and our profession.
In the same point, the author both advocates keeping our rules because they are "just fine" and "starting all over" with a revamping effort. Which is it? I see a thinly-veiled attempt to defeat the entire referendum for any possible reason. What does the author gain from that? Does it outweigh what our profession and the public will gain from these changes?
Opponent's Point 5: "The Bar has used our bar dues and its staff in a one-sided sales effort, refusing to allow referendum opponents to participate in Bar CLE events or in the Bar-paid-for road shows. Shouldn't the Bar be an honest broker in presenting the Pros and Cons, and then let us decide? If these proposals were worth all of this trouble, wouldn't they sell themselves?"
It is interesting that, with all the input, comments, public meeting feedback and contributions from every section of our diverse bar, the author casts these changes as "one-sided." The Task Force, Bar Committee, Board of Directors and Supreme Court have weighed and considered pros and cons for seven years! The bar membership has submitted comments that produced a number of changes. Is that purely because the author failed to take advantage of the public comment period? Or is it because the author (or the original source of this point) wasn't personally appointed to one of the drafting groups?
As for the last rhetorical question, shouldn't these proposals "sell themselves?", there are two problems. First, there is no "selling" going on; everyone I know of who has spoken in favor of the changes has explained their level of involvement in the process, the reasoning behind the pariticular revisions and where conflicting interests were accommodated as much as possible during the drafting process. The Supreme Court ultimately hammered the proposals into final form. When anyone I know has actually read the proposed changes and considered hypothetical or real disciplinary scenarios, they have concluded that these changes, while not perfect in every aspect, are definite improvements as a whole over what we have.
Conclusion: Once again, the attacks on the rules are non-specific, fear-mongering and dripping with "not made here" attitudes that attempt to cover the belief that, if this referendum fails, then perhaps the opponents will get more of what they want in the next round.
There won't be another 20 years of status quo whether or not these ballot measures pass. The SBOT Committee on the Disciplinary Rules of Professional Conduct is a standing committee that already has a list of additional changes the Court has asked it to work on. The revision process is open and on-going.
If you like some but not all of these changes, don't throw the baby out. Submit your suggestions on how to improve them. Participate, rather than simply oppose everything. It is your bar and your profession. Therefore, your responsibility to help in the self-governance process.
I urge you to vote "yes" and then keep on participating in the on-going improvement of our disciplinary rules.
YES
Feel free to post any specific questions or concerns that you have not seen explained or opposition points you have not seen refuted. I will promptly respond.
Here are the prior posts in this series:
Part One
Part Two
Part Three
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