Referendum Rejection: Bar’s Outreach Efforts Fail to Make Texas Disciplinary Rule Proposals Palatable

Nicole DeBorde’s Disapproval 

DeBorde’s dislike of the State Bar’s approach is just one of the reasons the proposed amendments went down in flames. According to opponents and proponents alike, lawyers had negative reactions to specific proposed rules changes and to the Bar’s marketing of the overhaul. DeBorde says HCCLA members told her they opposed the rules because they did not like a proposal they thought would require lawyers to document services rendered for flat fees. Plaintiffs lawyers and large firms objected to proposed rule changes defining a conflict of interest. They both argued that no new rules governing conflicts were necessary and that the proposals created confusion. They argued it would raise the prospect of unnecessary allegations about conflicts in the future.

DeBorde particularly disliked what she perceived as the Bar’s message that lawyers did not understand the amendments and that’s why they responded negatively and the Bar’s lack of response to public comments about the proposed rules.

Bette Pesikoff, a solo in Houston, voted against the proposals. Pesikoff says, “They were like, ‘We’re on the Supreme Court-appointed committee, so trust us.’ ”

Pesikoff also says when she read sections of the proposed rules, she found them poorly written and unclear. This is a reaction echoed by former Texas Trial Lawyers Association president Paula Sweeney. “The rules were so badly written. They were confusing and then to support them they referred to this huge commentary section,” says Sweeney. Sweeney is a partner in Howie & Sweeney in Dallas.

Luke Ashley, a Thompson
& Knight partner in Dallas

Chuck Herring

Chuck Herring is a legal ethics expert and partner in Austin’s Herring & Irwin. He opposed the proposals and sent e-mails to Bar members explaining why. On Feb. 17, Herring said, “I think what you saw obviously was that an overwhelming majority thought they [the proposed rules] had problems and flaws. What you did get was a very strong message to that effect. We heard from a broad crosssection of lawyers — big firms to plaintiffs firms to solo practitioners to criminal-defense lawyers. It really cut across groups. It lets them go back to the drawing board and pull in those groups and stakeholders,” Herring says. “It gives the Bar the opportunity to have better rules.”

Thompson & Knight partner and general counsel Luke Ashley says he sent an e-mail to all the lawyers at his Dallas-based firm. He told them he would vote against the proposed rules. Attached to the email was his own analysis of the proposed rule changes.

Ashley says he had proposed a change regarding the conflicts rule during the Bar’s comment period. However, that change was not in the final proposals.

Tottenham, of counsel at Fulbright & Jaworski in Austin, says in an interview that the Bar welcomed feedback on the proposals and responded to comments. He notes that the Bar held public hearings statewide and suggestions were fed in “real-time” to the Supreme Court. They subsequently made changes to the proposals based on those suggestions. “A fair interpretation of what the Bar was trying to do was tell people they should read the rules themselves, make up their own minds, and vote,” Tottenham says.

Response to the Process

Lillian Hardwick, an Austin solo who chaired the State Bar’s Texas committee on the rules, which had input into some of the rule-change proposals, says, “I don’t think the process could have been done better. And if you take as a fact that no single set of rules is going to please everyone, I think you have to look at the process . . . and if that language was not adopted, it means that the people with the knowledge and insight and input simply rejected that language. “You have to think about it. The managing partner of a big firm is not going to have the same desire for these rules as a criminal-defense lawyer,” Hardwick says. “You have to have someone with an overarching view to strike the balance that protects all lawyers and the public.”

Linda Eads

Southern Methodist University Dedman School of Law associate professor Linda Eads, a proponent of the proposed rules, said on Feb. 17 that the result of the referendum is that Texas will be stuck with some inadequate disciplinary rules. “One is that we don’t have a sex-with-clients rule,” said Eads, a former chairwoman of the Committee on the Texas Disciplinary Rules of Professional Conduct. She said Texas will be one of the few states that doesn’t prohibit lawyers from having sex with clients.

Eads also said she believes some lawyers voted against the rules because they don’t like the Texas Supreme Court. They promulgate the rules that regulate attorneys. “One person told me, ‘If these rules go down in defeat it will be a referendum on why we need to throw out the Texas Supreme Court.’ So, a lot of people voted for this as a political agenda as opposed to what are good rules and what are better rules,” she said. “They hate the Texas Supreme Court because plaintiffs lawyers view it as conservative. It’s a shame that better rules won’t get passed but the world will live.”

In a follow-up interview, Eads says the referendum has shown her “how impossible it is to pass regulatory rules when those who are going to be regulated get to vote on them.”

Moving Forward

With the defeat of the proposals, the Texas Supreme Court must make decisions. They need to determine how and when reforms to the disciplinary rules will be made. Justice Phil Johnson is the court’s liaison with the State Bar on the proposed rules. He says the court has a constitutional obligation to make sure rules governing Texas lawyers are “proper and appropriate.”

Johnson met Feb. 22 with the other justices to discuss how to proceed. He says they will work closely with the Bar to regroup and develop another plan to revise the disciplinary rules. Notes Johnson, “We don’t see this as an emergency.”