In 2017, the Texas Legislature amended Chapter 81 of the Government Code to create the Committee on Disciplinary Rules and Referenda, or CDRR, and to overhaul the disciplinary rule proposal process. The CDRR has proposed a number of rule changes that can be voted on by eligible members of the bar February 2- March 4. To learn more about the items on the ballot, host Rocky Dhir welcomes CDRR members Lewis Kinard and Claude Ducloux. They outline each of the eight proposed changes and explain how the CDRR identified rules in need of revision.
Go to texasbar.com/rulesvote for more information and to cast your vote.
Lewis Kinard is General Counsel at the American Heart Association and First Chair of the Committee on Disciplinary Rules and Referenda.
Claude Ducloux is LawPay’s director of education, ethics and compliance and is a member of the Committee on Disciplinary Rules and Referenda.
State Bar of Texas Podcast
Rules Vote 2021: Examining Proposed Changes to the Disciplinary Rules of Professional Conduct
Intro: Welcome to State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice with your host, Rocky Dhir.
Rocky Dhir: Hi and welcome to the State Bar of Texas Podcast. I don’t know about you but I love a good lawyer joke. Some lawyers severely dislike them but not me we’ve all heard the classic one. You know about the lawyer who dies at like age 48 and ends up at the pearly gates. Way better than the alternative, that alternative being the DMV but I digress. The lawyer protests, I’m too young to be here, I’m only 48 to which God’s gate agent shuffles some papers and says “But according to your billing records you’re 112 and six-tenths of an hour.” One of the reasons I love lawyer jokes so much is that they stand in such stark contrast to the way we actually do things as a profession.
The lawyer and the joke, I mean there’s a substantial chance that a colleague would have reported him for disciplinary violation and when you sit down and really think about it, the rules that govern our profession and the gravity with which the bulk of us treat them really set us lawyers apart. Those rules do not occur in a vacuum, they’re the result of painstaking thought and effort. In 2017, the Committee on Disciplinary Rules and Referenda was created in order to review and as necessary revise the Texas Disciplinary Rules of Professional Conduct. Well, after three years of tireless effort in 2020 the Committee proposed a number of changes to our disciplinary rules and the best part all members of the State Bar of Texas get to vote on those proposed changes.
Voting will run from February 2, 2021 through 5:00 p.m. Central Time on March 4, 2021. So what exactly are we voting on? My guest today will give us the lowdown. I have with me two members of the committee to walk us through the rules and revisions. This may be one of the most important and timely podcasts we’ve done. First, Lewis Kinard, is General Counsel for the American Heart Association and currently serves as the First Chair of the Committee on Disciplinary Rules and Referanda. Second, we have Claude Ducloux who serves as a member of the Committee — but boy, what a member. Claude has worked on ethics matters throughout his career, including representing lawyers facing disciplinary charges.
Both of these guys are heavy hitters and just what the judge ordered when it comes to understanding our proposed rules changes. I should know about these guys in fact, I do know about them because I had the honor of working with them on a webcast discussing the proposed changes. If you missed the webcast, you can still find it at texasbar.com/rulesvote. It even qualifies for an hour of ethics CLE. So anyway, without any further ado, let’s get to it and tackle these proposed rules revisions. So step aside, Lewis and Clark and let’s welcome our new guides Lewis and Claude, thank you guys for being here.
Lewis Kinard: Glad to be here.
Rocky Dhir: So Lewis, let’s maybe start with a little bit of background. How did this committee get started and who in the heck was making all the rules before it started?
Lewis Kinard: Well, let’s see how far back do we go, you know, it’s a great question and I think that it helps because what we are really trying to achieve here is a whole new mindset and attitude in the Bar Membership about taking the responsibility very seriously by managing these rules. So if you go back, it’s been quite a while, I don’t have the exact year but the Texas Bar Membership has reserved for its members the right to vote on and approve any changes to the Disciplinary Rules of Professional Conduct and the rules of disciplinary procedure but the last time rules passed the Bar vote for the Disciplinary Procedure Rules was 1994. And for the Rules of Professional Conduct was 2004. So, who was doing it before then? Gosh, I don’t know, I’d have to go back into the dusty old Texas books and see. But really, what it is, is the Supreme Court can and has the power to issue those rules but it’s supposed to only issue rules that the Bar membership has approved.
Before 2017, there were several efforts to try to get rules done, usually they were through committees, sometimes a task force appointed by the Supreme Court, sometimes both at the same time. Then I guess in the last 10 years, since that last referendum rules vote effort in 2011, there was a standing committee at the Bar about 23 members from all over the state and all parts of the Bar represented to go in and work on proposals to address perceived shortfalls, gaps or anachronistic provisions and make the recommendations to the board.
I was actually on that committee, I was appointed at that committee right about the time that 2011 ballot was sent out. So I had nothing to do with that one, but I got to live through the voting and animosity generated by the process leading up to it. It was really good, very educational. I could then learn what the sensitivities were and why some people were so concerned about the way we got to that point. Then nothing passed, not one provision passed. So our rules are pretty far behind; I would say almost every state out there, I don’t think there’s any other state that has gone as long — okay, maybe Mississippi you know? You got to remember Mississippi is probably down there but unfortunately, we’re in the same echelon that they are.
Rocky Dhir: That’s kind of ironic because you know really, Texas has kind of led National Bar efforts in almost every other front but you’re saying that our rules have been far behind the changes that others have made. I think that’d be kind of shocking to a lot of Texas lawyers.
Claude Ducloux: Well, let me jump in here. One of the reasons we had some real problems with an old State Bar Act and that was that to get anything passed by the lawyers, you had to get 51 percent of the voters of the lawyers that were licensed voting. And so, if you are opposed to something, you had a double ballot by simply not showing up and voting and there was organized opposition. So the people that did vote passed but there was not enough and people were against it. So you had this — that’s what was fixed in this 2017 Act that Lewis was talking abou.
Rocky Dhir: Interesting, wow, okay.
Lewis Kinard: You know, law students have been going through professional responsibility courses for decades and learning the model rules, learning what the pretty much the general starting point is for every state in the country.
Rocky Dhir: Sure.
Lewis Kinard: And then they come out and practice in Texas and have to go back and look at the rules that haven’t been the model rules for quite some time. So there is kind of a strange head scratcher there and I think that’s one of the things you probably might hear Professor Johnson talk about. He’s you know, “I got to teach kids the model rules because they’ve got to pass that standard test that’s nationwide. ” Model professional rules or MPRE whatever that stands for.
Rocky Dhir: Right, right, I remember that.
Lewis Kinard: And then they come back to Texas going “Oh wait, that wasn’t what I studied.”
Rocky Dhir: So on this committee, how many members do you have and who all’s(ph) on it?
Lewis Kinard: We have nine members, seven lawyers, two non-lawyers. The Supreme Court appoints half, the State Bar appoints half and they alternate selecting who is going to be the chair and I have been fortunate enough to be the first chair and they’ll take turns picking the successive chair of the committee.
Claude Ducloux: He’s been a great Chair, I got to say. Rocky, I’ve been involved with Bar work and has had a steady hand, very, very open to ideas. And so he’s been a real good guy to work with these last three years. It was intense, I want everybody who’s listening to this know how intense we met every single month. Sometimes people meet quarterly, you know, the CLE Committee doesn’t meet this. We meet twice a year. This was every month and really, really engaging and hard work and very proud of this work product.
Lewis Kinard: well they promised to double our salary if we met every month.
Claude Ducloux: That’s right.
Rocky Dhir: Well you know, I do want to get into these actual ballot items but before we do. An interesting question I was kind of thinking about, even leading up to this podcast was how did you decide which rules needed to be revised? I mean you know, we can talk about what’s on the ballot but how did you decide what belongs on the ballot? I mean in theory, it could be a lot more than eight. So how did you narrow that down?
Lewis Kinard: You know, the charge in the statute is that we constantly go through the rules to determine whether they’re adequate or need some change. Well obviously, we’re not going to do it all in the first month, so we have to kind of meet it out. And we also hear from other constituencies, the Supreme Court specifically asked us to look at a rule. They had asked us to look at some comment changes, the lawyer advertising committee did a bunch of work and sent it over. The Board passed a resolution wanting us to review and take that up for consideration. And then the members of our committee all are aware of or have known of requests for help, relief, something dealing with certain rules and we just take them up as we can right
Claude Ducloux: Right, we were dealing — we were a completely blank slate, and that is that there were no procedures set up, this is a brand new committee. So I recall actually proposing a rule that would be an exception to confidentiality just get us started and we came up with a numbering system. This was based upon the year that it was proposed, which rule proposal that year and then we tracked through the statute to have deadlines. This has to be done within this many months, this — so many days after this, it needs to be published. So we created this process out of whole cloth and really following the statute every step of the way, so that we would have a legacy procedure of those things.
So as Lewis was telling you, these rule proposals can come from anywhere, it can come from a lawyer in Texarkana who says “You know, you need to change this rule” and we would consider it. And as a group, we thought you know, that’s worth docketing as a rule and most of them were. I mean, there were some things that you would probably say “No, that’s not rule-worthy, that’s not something,” it’s like “No dogs in the courtroom” or something like that. But we would docket it and we refined that procedure as we went on and we’ve got it to a pretty smooth operation where we know and with each single meeting, we check on “Okay, where are we in proposal number 21? Where are we in proposal number 22? We have this many days to get it published in the bar, so it’s been a wonderful and collaborative learning experience and we’ve been very serious about it since the beginning.
Rocky Dhir: I can tell that both of you and probably everybody on your committee, you guys were the law students who read every single page that was assigned to you. So I’m already unqualified to ever serve on this committee but it’s great to be able to learn more about this. I do want to make sure we have time to talk about these specific ballot items because they’re interesting and they’re a lot more interesting that might meet the eye. So I want to give you guys a chance to kind of talk us through them.
So eight ballot items, I guess let’s just go through each of them. I know we’ve got current Rule 1.02(g) is now being proposed to be replaced by proposed Rule 1.16 Claude, do you want to talk to us about that? I know it deals with clients with diminished capacity but why is that important?
Claude Ducloux: Sure. Let me just say as a big group, these first three are all good new tools to put in your tool kit as a practicing lawyer representing clients in the State of Texas.
Rocky Dhir: And when you say the first three, you mean ballot items a, b and C?
Claude Ducloux: Yeah, a, b and c, I’m sorry. Yeah, so all of these first three are exceptions, you know, we have absolute duties of confidentiality, except in certain situations we think our client is going to commit a crime. Well, these are little cracks in that door that will help you with difficult items. First we know, and this was actually requested by the probate section say, “Look, we’re probate lawyers and we do lots of estate planning, we might have represented a client for 30 years and he shows up for an appointment and we’re worried that maybe he’s got a little dementia. He doesn’t seem to understand well, under the current rules, we don’t have any flexibility. We have to say ‘Okay, call his wife, we’re going to put him in guardianship’.”
No, this allows you to reach out to, like the wife or the daughter, or the son, saying “You know, I met with Bob and I’m not sure he really knows what we’re — how is Bob? Has he been checked out?” Without reveal, you don’t immediately come in and say “Well, Bob wants to do something stupid.” You just say, I’m worried that he didn’t understand our conversation. Again, and all three of these first ones which Lewis and I will discuss are all permissive. You don’t have to make that call but it gives you that opportunity that you don’t have under the current rules to try to make sure your client understands the nature and extent of the representation, without immediately going to “Well, time to put him in guardianship.”
Rocky Dhir: Now just before I forget, I want to ask you guys kind of a — I guess it’s kind of a procedural question. When lawyers are voting on each of these ballot items, do they have to vote yay or nay on all of them or can they go through each one and say “Yay on one and nay on this, nay on this, yay on that,” is it —
Claude Ducloux: That was the problem with the last group too. There was too many together. This time yes, you vote up or down on a; up or down on b, all the way through h. So you can pick and choose those that you like. The one big group though, as you’ll talk about in a second is e is the advertising because that was a complete redo of those advertising rules and they need to be passed together because they meld so well together.
Rocky Dhir: So a is for clients with diminished capacity. It gives the lawyer the option should he or she choose to use it to reach out to family members or — can you reach out to medical practitioners as well and say “I know so and so is Bob’s doctor.” In your in your last example and say “Hey doctor, I think bob needs help what do we do about this?” or are there limits?
Claude Ducloux: You can make a reasoned decision of what is the least amount of disclosure you need to at least get the message across to somebody. Yes, you can probably — if you’re in a town where you know his doctor, you can say “Doctor, I had a conversation with Bob, I’m not sure he understands. How is he? Does he need help?” and that again, it’s permissive and you can’t get in trouble for not making that call to the family member. It’s to help your client and help you help that client.
Lewis Kinard: That’s right, and that doesn’t mean that you just can go and drop your whole file in someone’s doorstep and walk off and say “Hey, call me back after you read it.” No, the idea is, what is necessary for you to do what you think is necessary to keep the client from committing substantial physical, financial or that type of harm.
Rocky Dhir: Now, I know b and c both — they’re both part of the same rule. You’ve got 1.05(c)(9) and (c)(10). Can you talk to us a little bit about what those two items are doing and what the differences are?
Lewis Kinard: Absolutely. So you know, a lot of people probably think it’s already there that it’s fine to go out and say “Hey ,I got this crazy ethical dilemma and I got to talk to somebody. You’ve probably handled something like this, you’re an ethics attorney. Can I talk to you about it?” and they don’t realize that you’re actually supposed to talk in hypotheticals. You can probably remember back to law school, that was the way everyone talked. “Well, hypothetically speaking let me ask you about this real situation.”
Rocky Dhir: I’m going to ask about my friend.
Lewis Kinard: I know, that’s right, asking for a friend. But no, that’s the thing, it should not be an ethical trap to seek ethics guidance. And so, we want to make sure it’s absolutely clear that if you’re talking to someone short of the CDC, that you’re able to say “I can disclose a certain amount of actual facts, so that the person can give me actual information.” And again, you only need to disclose what you have to disclose to get that advice tailored. But as Clause is kind of indicating, sometimes in smaller areas, it’s not that hard for the other person to even figure out what you’re talking about or who.
But it shouldn’t be a disciplinary rules violation for them to have figured that out if you didn’t carefully cloak or reshape or change all the names to protect the guilty. That should not be itself a disciplinary rules violation because you’re really just trying to figure out what’s the right thing to do is.
Rocky Dhir: Right.
Claude Ducloux: Right, I can tell you a really big huge vibrant part of my practice as I get older is giving law firms around the state and around the country ethics advice. And sometimes, they have to just tell you exactly what the issue is without making it hypothetical so you can give them an informed opinion on that end. Of course, I’m bound by that confidentiality, which is — but now we’re just tying down that little loose end to make sure everybody knows, “Yes, you’re allowed to get ethics advice.” And to break that confidentiality to secure an opinion on what you want to do.
Rocky Dhir: Now item c actually speaking of confidentiality, that goes to a very serious topic that the State Bar has been very focused on mental health and this goes to the mental health of clients and potential mental health. This has to do with clients who may be contemplating suicide.
Claude Ducloux: Yeah.
Rocky Dhir: As I understand it, talk to us about that right.
Claude Ducloux: Right. We know that there’s so many people especially during this whole COVID lockdown which we’re still in — we’re seeing just a zooming amount of depression.
Rocky Dhir: No pun intended with the zoom.
Claude Ducloux: But honestly, we know that for example you can reveal if some — commission of a crime or somebody’s plan to hurt someone. A number of professions who deals with confidentiality are allowed to do that or child abuse, or things like that.
Rocky Dhir: Right.
Claude Ducloux: But here, if you form a good faith impression in your own mind from conversations or other communications with your client, that your client is in danger of dying by suicide. Again, this allows you to crack that confidentiality door enough to reach out to somebody. Maybe I’ll call in his brother or wife or something like that. Say, “Listen, I’m worried about Bob, I had a conversation. He appears depressed.”
And again, it’s permissive, you don’t have to do that. If you don’t do that and something happens, you’re not liable because you had an impression. It’s to help your client avoid suicide. And yeah, we’re not healthcare professionals, so that’s why we don’t have an absolute duty to do that.
Rocky Dhir: But you know, when you say it’s “permissive” I can already hear lawyers saying that “Well, if it’s permissive, then I’m better off not revealing anything because if I do reveal it, does that then increase my duties or give me a continuing duty. Am I now putting myself in some form of extended liability because I chose to break confidentiality, I chose to talk to a wife or a sister, or a brother, or a husband or what have”?
Claude Ducloux: We have debated that over and over but believe me, we’ve turned these upside-down, shaking them out across from the ceiling. Everything and actually, the only one that we thought might get mad at you is your own client for mistakenly doing that. But I think if you have a reasonable impression that he may be in danger of dying by suicide, you have that right to try to prevent that.
I would rather have him mad at me than to miss the opportunity to help them.
Lewis Kinard: And Rocky, it’s also limited by “you should only disclose what is necessary” in order to address the specifics of that situation. But the lawyer gets to decide that under her reasonable belief as opposed to it being some external standard.
Rocky Dhir: Well, I do want to move on to item d, so that we don’t get — because I know we’ve got the advertising coming up and we need to spend some time on that if you’re going to be interested in that. So with item d, now Lewis, I’m chuckling because you talked earlier about the model rules. And to be honest, when I was a young lawyer, I thought Texas just wanted to be different and never really adopt a model rule because so many of our rules were different from the model rules. But Proposed Rule 6.05, as I understand is based on ABA Model Rule 6.5 talking about exceptions for conflicts of interest for pro bono and non-profit work. Can either of you tell us about that one?
Lewis Kinard: Sure. And to your point on the model rules, difference, one of the reasons we need to have some of these other exceptions, we’ve talked about is because Texas has a unique approach to client confidentiality rule. And that is that bodily harm thing, since suicide has been decriminalized. You can’t anymore use that criminal — to prevent a crime exception under confidentiality. All right, on this one, this is actually based on the model rule that 48 states in the DC have adopted some form of. Not everybody went with the straight ABA language because it has some problems when you really try to apply it to the everyday ground game.
Rocky Dhir: Sure
Lewis Kinard: But here’s the deal, disasters happen everywhere and lawyers want to help and that’s just kind of the nature of us being in this profession is we’re usually doing it for one reason or another to help people. So when a disaster strikes, duty calls, it’s natural for us to want to go out and do what we can, use — Look, we’re not electricians, we don’t remove brush and debris, we don’t apply life-saving bandages. We’re not the first responders, we’re not really the second responders, but to be that third responder category I guess.
Rocky Dhir: We’re the first reporters(ph). Report everything.
Lewis Kinard: Well there’s still a lot we can do. So get out there, help, go when you can where you can safely and help people know what to do next. Save their lives, make sure they’re going to survive, they’ve got some place to live. Now, how do they start putting their lives back together?
Rocky Dhir: Sure.
Lewis Kinard: What form do they file with which agency? How do they answer the question of “who owns granddaddy’s car that he left to john but we never transferred the title.” And those types of everyday real legal street lawyer problems, that people have, that lawyers are very good at being able to at least point someone in the right direction on. So what happens if you do that? The old no good deed goes unpunished” adage is that you might have created an actual or potential conflict of interest or broken through one. Because someone else, someone in your firm that you didn’t even know or know about, or know who they are talking is talking to the other side or some other related party.
And the fear of that happening which can have very real economic consequences has kept a lot of people from going and doing just what they really have that impulse to do. So this is what the national approach has been, basically everywhere you can, carve a very narrow, limited exception to the imputed conflict of interest rules. It’s not to the direct conflict, so still can’t represent both sides the same case.
Rocky Dhir: Sure, of course.
Lewis Kinard: But the unknown imputed or imputable conflicts or potential conflicts should not be the barrier to getting to the public the help they need right then.
Rocky Dhir: Got it. Now again, keeping an eye on the clock. I do want to get to item e which is, I call this the “big kahuna.”
Claude Ducloux: All right, I am going to take you through a jet thing through e. First of all, everybody understand we have current Rule 701 through 707. They’re all gone, all of those are gone and we’ve rewritten them as 71 through 706, our job is to simplify, modernize and clarify. Make your life as a lawyer easier, make these advertising rules easier to understand, easier to follow, lots of exceptions, where you’re not subject to them anymore.
So let’s go ahead and start with 701. The whole purpose of these is to focus simply on false and misleading statements. Because that’s what really what constitutional jurisprudence is all about. Then we define what’s the difference between an advertisement and a solicitation. An advertisement of course is something that everybody can see a billboard, it’s in the book. Solicitation is a targeted communication to you — “Rocky, I see you were in a car accident, would you like to hire me?” that’s a solicitation,
So, we define that very easily for lawyers to follow that. The only rule that we’ve changed that was in existence we’ve had a long time like most states have. You can’t have a trade name, that means you always have the name of a lawyer. Like, if you want to be a construction lawyer, you can’t say “Construction Lawyers of North Dallas.” The trade name rule now allows that but they have to be non-misleading, non-deceptive trade names. You can’t call yourselves “Houston Grand Center for all Lawyers, know blah, blah, blah,” something that’s deceptive. It’s got to be — and of course, we’re going to go through that and we went through the whole debate for months. What about silly trade names? Well, all we’re really doing — we’re not plowing new ground here and allowing trade names. Other states have already gone through tons and tons of federal litigation where the Supreme Courts always said, you can’t stop non-deceptive speech that’s not dangerous to somebody.
So we’re just following really a long established law and again, we want to make sure that everybody understands we’re just — this is a constitutional issue that there was already cases in all sorts of other states saying, “What’s wrong with calling yourself “Collin County Family Law Clinic” or something like that? As long as it’s not deceptive, so that’s what we’re aiming for, still the lawyers in there, there has to be someone who files with the State Bar who’s in charge of that office. You’ve got to follow the state rules, as far as a fictitious business name and file it at the secretary of state.
So it’s not like you’re hiding behind something, they’re still going to be able to find out who’s part of Collin County Family Law Clinic, so that’s the big trade name controversy, which is really a non-controversy. And then we continue the rules on advertising, it’s — the advertisement has to when it’s filed, identify the lawyer responsible for that ad. You can disclose of course in your — you may disclose, you don’t have to disclose, you can if you’re Board Certified by the Board of Legal Specialization have some other special thing that’s been approved by the Board of Legal Specialization. And then very simple rules like, if you say a contingent fee, you have to identify if there’s other costs involved, blah, blah, blah.
And finally, if you say I’m doing a special for will packages for $350, you have to either state how long it’ll be through June 30th or you have to keep it for a reasonable length of time. All of these are very reasonable things to do, then finally on solicitation and other prohibited communications; you can’t directly solicit people again and we’re adding through social media. So not only with a letter or telephone call but also through active social media, which just involves — we modernized this whole group of rules to include social media.
The other thing is, this is an old rule but you can’t misleadingly label a solicitation like “This is a subpoena, you have to call our law firm.” You know, you can’t make it look like a thing. And then we have added which is a normal thing now that you can’t pay people for referring cases but you can do what we call a “Nominal gift given as an expression of appreciation.” You can take somebody out to lunch. I’m sure there’ll be some people that abuse that but yeah, a nominal gift you can take to somebody to dinner or lunch. Thank you very much for referring this client to me, buy them a cup of coffee that sort of thing. And now we also in 703, they’ve been gone going on forever. It’s called “reciprocal referrals” let’s say, all I do is estate planning and my clients need real estate. I can say Rocky Dhir does all the real estate and I always send my clients to him. I still have to make sure that I believe you can handle that. I have to act — and so, and he’s allowed to say “I don’t do estate planning, I send all my estate planning to Claude Ducloux,” So those are allowed and again, we have that exception where you can give a nominal gift, an ordinary social hospitality of nominal value is going to be permitted.
The filing requirements are kept somewhat the same, only in the sense that you can now get pre-approval, so you don’t have to spend all the money on a final copy of your ad. You can say “Hey, will this (00:29:47)?” and they’ll go “Yeah, I’ll give you a thumbs up ahead of time” but it does — would you still have to file that? Also, the thing that lawyers are really, really going to like, it’s very important, there’s a lot of situations in which you don’t need to get, except from filing requirements. They’re completely exempt from filing requirements. Any communication by a Bona Fide Legal Aide Organization just advising people of their rights, that’s not a solicitation, that’s not an advertisement because people need to know.
If they’re doing that for free, to advise you “Hey, here’s how you get relief under this particular statute or here’s how you handle this” and then we have great exemptions in this rule, the Rule 705 for regular professional newsletters, things like that. Also, you can send a solicitation directly to a person who normally uses lawyers. Like, if you want to send a letter to Dell(ph) saying I’ve just started the Law Firm of Ducloux and Dhir and we’re great intellectual property lawyers, can we have an interview because we’d like to represent you? You don’t have to write on that that that’s an ad because that’s — you’re sending it to someone who hires lots of lawyers. So we give you an exemption for that. Also, you can send newsletters to people who again, normally use the types of services that you do, existing or former clients, other lawyers, all that sort of stuff. And here’s the great thing, if you want to comment on something political or social or artsy, you can post all you want on various platforms and you don’t have to say it’s an advertisement.
Now, you can make a mistake and make it an advertisement by the very end of your wonderful blog say “And for legal services, call me at 512.” But as long as you’re just making a commentary about social or law, or something like that’s going to be exempt and lawyers are going to love that. Now, it continues then the regular prohibitions on continued employment, if someone in your firm is disqualified for breaking these rules or anything like that. And this really is — I will tell you we spent more than two years crafting these six rules going through thousands of emails, getting thousands — I mean hundreds of input from lawyers around the state. We got an entire briefs from some lawyers now. I’m sorry that I rushed you through this but I know we were trying to hit a deadline —
Rocky Dhir: No, I appreciate it.
Claude Ducloux: That’s all of them.
Rocky Dhir: And we’ve also got a few — these looks like procedural items, items f, g and h dealing with the reporting of misconduct and assignment of judges; can you just fly us through those?
Lewis Kinard: Sure, reporting professional misconduct and reciprocal discipline. This really just closes a bit of a loophole which kind of unfairly allows those who practice in specialty, administrative courts that have their own disciplinary processes to not have to report the same types of actions that you or I would have to report based upon a State Court or Federal Court’s disciplinary step. So if you are somehow sanctioned or disbarred or prohibited from practicing in that jurisdiction, you have to report that and it’s always been the case. I think since the beginning of the model code, that they want lawyers to report — self-report. Basically say, “Here, this happened to me and whatever state or region” and you know, doesn’t mean automatically you’re going to get the same sanction in Texas but at least the CDC knows about it and can decide whether it’s appropriate to open a proceeding in Texas for something else.
And some crimes are far worse than others but there was a “loophole” I call it, where if you are saying the patent Bar or immigration practice for immigration courts, something could happen to you there and maybe it’s very egregious. But you didn’t have expressly verbatim in our rules the duty to report that, since it wasn’t technically a court of law. So this just closes that, the CDC has asked for us to close the loophole, to make it clear so that lawyers aren’t confused about whether they should or should not report something like that.
And at the same time, I think it makes it fair for those who may just exclusively practice in those areas to be under the same rules that the rest of us remember.
Rocky Dhir: Yeah, and very importantly and that’s really important to the Bar to understand, we’ve made this really secure, that it’s not like “Oh, you didn’t pay your dues to the patent Bar and you administratively spent. Now, you have to report that” or even if you got held in contempt of court or something. No, that’s not what this is about, this is you, actual have to have discipline against you, which brings us then to item g.
Now, this is what the Supreme Court asked us to fix this rule. In those very few cases, there’s probably around a dozen a year where people still choose if they get hit with a disciplinary action, that they wanted to go to District Court. Under the old rule, it’s been in effect for 25 years, basically the Supreme Court picks a name out of a hat of a Judge to assign.
And maybe the judge has to go 400 miles and she’s not very happy about having to go to El Paso when she’s from — they said fix this. So what we have crafted with the total input from the Chief Disciplinary Council’s office is a better rule and that says “The Supreme Court can ask the presiding Judge of that whole judicial district — administrative district to choose a judge who would be appropriate out of the county of the lawyer — to hear that. So it’s much more flexible and the second thing about this new rule is it makes the recusal procedure, the same recusal procedure that the defendant would use under the Rules of Civil Procedures.
The old rule — this old rule that’s in existence has this funky sort of recusal that’s not the same. So make it standard, make it right under the rules and make it much more convenient for the lawyers in that area for these supervising lawyers — say, judge to pick someone who would be appropriate.
Lewis Kinard: There was one we also talked to the Administrative Judges Committee and made sure they were fine with this. So they understood that it would fall back into their realm and out of the Supreme Court’s
Rocky Dhir: Right. The Texas judges brought it up at their annual meeting and said yeah, and they wrote us the letter saying “Yeah, we’re in favor of this rule.” So, again, it’s a no-brainer and the final one is cessation of practice.
Lewis Kinard: This is claused right here.
Rocky Dhir: Okay. Well, you know, again, this is a rule of disciplinary procedure. Again, it’s not accounted but we have an aging population of lawyers. We have lawyers that are facing various medical issues and many lawyers who are not making any plans to retire and suddenly they’re going to have a stroke or they’re going to die or they’re going to have a heart attack. And what do you do? Well, there’s a rule of procedure where you can go to the District Court and ask for custodians to be appointed, one or more custodians to go in and close down that lawyer’s office.
Well, we thought “that’s great, why not have a voluntary rule?” that’s what this item h is, it allows you to appoint a custodian ahead of time to say “If anything happens to me,” now you can also do that on the State Bar’s website but this allows you ahead of time, a very, very simple process. If you pass, this is going to be a new Rule of Disciplinary Procedure 1304, 1301 through 3 deal with the judicial procedure and this is a voluntary procedure. It’s going to be very easy to do, it’s a great thing to have in your toolkit. If you are a practicing lawyer, to know that all I have to do is name a custodian of anything if I get hit by a bus. Maybe I’m very healthy and I just — some horrible accident happens to me and I can’t practice; this is a wonderful rule, absolutely must pass this.
Lewis Kinard: It’s kind of like a living will for your practice and it doesn’t require you to go to Court first and that’s one of the things — again, it gives the Good Samaritan, I guess liability protection as long as they are just doing that job of closing a practice which is also in the client’s best interest, right? So you want to make sure that the files don’t just sit there in somebody’s closet because their family didn’t know what the heck those files were. You’ve got someone who knows what’s going on or knows how to do it and can then make sure the client’s interests are protected. Which is again, that part of our goal and these rules is to protect the public, right? So this is as important for the public, as it is for the practitioner.
Claude Ducloux: Right. Absolutely, you know, one of the things I forgot to say the great benefit of getting that judicial procedure is that you get Good Samaritan protection. You’re not now a fiduciary as long as you don’t grossly mishandle the closing — or embezzle money and that’s the point of this rule. You get that same Good Samaritan “Hey, you’re trying to help out. You’re being a good person.” So unless you really steal that lawyer’s money or something like that, you can’t be sued for your actions as a custodian.
Lewis Kinard: If you’re a custodian. Now, that that makes sense, so that actually takes us through all eight ballot items guys. I’m really impressed, we made it through but I am looking at the clock and we have run out of time. So Lewis, Claude, thank you guys. Not only for being on the podcast but to you and your committee for all the hard work you’ve clearly put into this. Now, if anyone wants a deeper dive into these changes, if you want to get the full version, please go to texasbar.com/rulesvote and tune into the full webcast. Don’t forget to vote between February 2nd and March 4, 2021 at 5:00 p.m. Central Time. Now, how do you vote? Well, I’m about to tell you. Texas lawyers who are active and in good standing will be able to vote by either paper or electronic ballot, your ballot will be mailed and emailed to the addresses you have on file at the State Bar. So please be sure to check your mailbox, as well as your email box for your ballot. You can also go straight to the State Bar website, texasbar.com to find a link to the ballot during the voting period. Now remember, it’s your unique right and responsibility as a Texas lawyer to vote on these disciplinary rules.
So please, exercise that right, it’s hugely important and you’re going to do honor to these great committee members who put in so much time and effort. Now of course, I want to thank you for tuning in and I want to encourage you to stay safe and make sure you follow all applicable orders for dealing with COVID-19. As Claude said, we’re still in the midst of it so please advise your clients and loved ones to do the same. This situation is changing fluidly and quickly, so please seek out legal counsel if you have a question. If you like what you heard today, please rate and review us at Apple Podcasts, Google Podcast or your favorite podcast app. Until next time, remember, life’s a journey folks I’m Rocky Dhir, signing off.
Outro: If you’d like more information about today’s show, please visit legaltalknetwork.com. Go to texasbar.com/podcast, subscribe via Apple Podcast and RSS. Find both the State Bar of Texas and Legal Talk Network on Twitter, Facebook and LinkedIn or download the free app from Legal Talk Network in Google Play and iTunes. The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by the State Bar of Texas, Legal Talk Network or their respective officers, directors, employees, agents representatives, shareholders or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.
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