Rules Vote 2024: 12 Proposed Changes to the Texas Disciplinary Rules

Episode Notes

Transcript

Speaker 1:

Welcome to the 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:

Hello, I’m Rocky Dhir and welcome to a very special presentation of the 2024 rule vote. We’ve got a wonderful panel discussion for you today. And guys, I want to take a second to just tell you what makes being a Texas lawyer so special. It’s the fact that we get to govern ourselves, including me. They let me be part of the self-governance. Somebody’s got to talk to somebody about this, but it’s a really special thing that we as Texas lawyers get to do. We get to make our own rules and we govern ourselves and we’ve got to take this seriously. And today we’re going to be talking about a series of changes to the Texas disciplinary Rules of professional conduct. You’re going to get a chance to vote on these starting April 1st. So on April 1st when you get a notification saying voting is started, it’s not an April fool’s joke, it’s for real.

The only thing foolish would be not to vote on these rules and these changes. You’re going to get a chance to vote from April 1st through April 30th at 5:00 PM and this is going to be a tremendous opportunity for all of us to have a voice in how our rules are conducted from now on. My name is Rocky Dhir. I’m an attorney from the Dallas area. I’m the president and CEO of Atlas Legal Research, and I’m also a standup comedian. But don’t make that deter you from listening to the rest of this. I’m joined today by an amazing panel of lawyers. They’re all members of the Committee on Disciplinary Rules and referenda. First we’ve got our chair, Lewis Kinard So Lewis, thank you for being here today. And we’re joined also by Judge Phyllis Martinez Gonzalez, Scott Brumley, and Claude Ducloux, who is actually rolling off the committee after six years. So Claude, thank you for your service. Lewis, you want to tell us a little bit about the committee, the process, what’s been going on?

Lewis Kinard:

Thanks for having us and it’s good to be here in person this time. I know two years ago we were all just tiles on a screen, right? So we are here again to talk about new changes to our rules of professional conduct and disciplinary rules of procedure. As you may remember, 2017, the legislature created this committee sort of a joint venture between the Supreme Court and theBar. They each nominate about half the court nominates five and theBar four of our nine members, one. Each of those is a non-lawyer. So we have a public representative, two of them on the committee as well. And our continuing mission is to review all of the rules of professional conduct and disciplinary rules of procedure and ensure that they are adequate for Texas. We had a lot of work to do because it had been decades since changes had happened into the Texas rules.

So we’re doing this in small doses. As you remember, eight items were on the ballot in 2021. We have just a dozen this time. They are incremental changes for the most part, some a little more substantive, but our committee is charged with managing the process. So we have certain timelines we follow are measured against. We get the proposal in, we initiate, we have a lot of discussion, we have all of our meetings online for everybody to watch live. They can also watch the recorded version at their choice multiple times even. And so we are there in person in present with everybody watching what we do as we deliberate on each item. We have public hearings, we post our draft proposals in theBar, Journal and on the Texas Register. We invite comments, we read every comment that comes in. We have a lot of participation, never enough, but a lot and good participation because we get a lot of comments, suggestions, sometimes criticisms maybe from our audience and okay, we want everyone to know that this really is, as you said, Texas’s process. It is unique. It is part of our freedom of self-governance is the responsibility of actually doing the self-governance. So we appreciate everybody who contributes and participate.

Rocky Dhir:

Claude, you’ve been on this committee for six years now. So what’s been your perspective on the committee’s duties and rules and functions?

Claude Ducloux:

Well, many people know me, I’ve been involved in bar work. This was the hardest work I’ve ever done. We were meeting every single month and between those meetings we somehow sometimes passed a hundred emails talking about a particular rule, the way to do it. So the important thing that I wanted to tell for all the lawyers out there is that because this is on the ballot, this means this has been thoroughly vetted. It’s been looked at from all sides. We’ve taken in information from lawyers. Sometimes we get incredible briefs from lawyers in small towns that you wouldn’t even expect. And then law professors look at it and all sides, we have some rule proposals we’re going to talk about that were kind of dicey and they all were submitted to both sides. And we’ve come to agreements on these and generally speaking, any of you can offer us a rule the way it is.

You can make us a proposal. If it’s something silly like we want lawyers to wear green hats, no, we will not docket that. That’s probably not a good rule. But you can propose a rule that if it’s docketed and then it’s initiated, it’s published in the Texas Bar Journal, then you have your comment period, you have a public hearing. And sometimes we extend that because we want to make it a little better. We want to polish it. Maybe the adjectives aren’t just right, but finally when we reach a vote on it that we think it’s a good proposal, we send to the state bar of Texas, its board of directors votes on that. And then it goes to the Supreme Court. And I want to echo what you said too. We want this to be a normal process. About every three years we give you 10 or 12 new improvements to the rules. And the whole point of these rules are to, we do this by reviewing other states. Some states have wonderful better rules that I thought and we thought as a group ought to be implemented and we take multiple perspectives. So I want everybody out there to know that these have been thought about for a thousand hours before they’re coming to you. And again, do what you say, exercise your right to vote in April on these rule proposals to show that we care about these rules.

Rocky Dhir:

Thank you both for that. And we’re going to move now into talking about these specific that the 12 proposed changes. But before we get there, I want to remind all of you out there that it is not an all or nothing deal. When it comes time to vote, you can vote yay or nay on each individual item, each individual proposed rule change. And that’s important because you might agree with some, you might not agree with others. So it’s not an all or nothing kind of deal. It’s not a zero sum game. So I want to make sure you guys know that so that when you hear the discussion and you read through the red lines, you can understand where to go. And by the way, if you want to follow along, you can go to Texas rules, you can go to Texas bar.com/rules and you can see the red line. So you can keep up with us. Now, valid item A. So Scott, we’re talking here about terminology. Looks like we’ve got some changes, some five new definitions and one clarification. And we’re lawyers, we love defining things. So Scott Brumley, I’m going to turn it over to you.

Scott Brumley:

Yes, I’ll dive right into the minutia. We all love to live in what rule 1.00 proposed we’ll do is take the current terminology section at the front of the rules and move it into own to use awkwardly, use modern parlance. It will upload that content into its own substantive rule. All of the definitions that currently exist in the terminology section will come to the new rule. One will be slightly modified, all the rest will continue in their current verbiage. And then there will be five new terms in that rule. The new terms begin with confirmed in writing. It is what it sounds like confirmation of a consent matter in writing. It relates to another term I’m going to get to in a moment, which is informed consent. And the important I think aspect of this particular definition is it allows for oral consent to be memorialized in writing if that happens immediately or within a reasonable time.

And I think the goal here is to encourage matters involving consent to be reduced to writing, to avoid confusion as well as swearing matches informed consent. This definition will tell lawyers helpfully. I think that when it comes to obtaining consent from the client for a particular course of conduct, you have to include in that discussion disclosure of the potential risks and benefits of the course of conduct as well as anything that a substantive rule or law requires to be disclosed in obtaining consent. If it’s going to be informed consent, you’re going to have to cover the bases before you get the client’s consent for whatever the conduct may be. The next term that will be new is represent, represent or representation. And the key here is that it relates to an active attorney-client relationship. When the attorney-client relationship ends, representation ends for purposes of the rule.

Next may be the most significant new term in my view, which is screened. Lawyers tend to know at least generally about conflict screening. This takes that and reduces it to a succinct but authoritative rule on what is screening. And the idea here is screening is measures taken to timely imposition of measures within the firm that are reasonably adequate to protect confidential information when lawyers are moving from one firm to another. And the thought that the committee really wanted or the goal that the committee wanted to reach in this was to facilitate mobility of lawyers so that the fact that you worked at a firm that might have confidential information but you didn’t personally handle that case, shouldn’t prevent you from moving to another firm. So long as that firm practices reasonably adequate measures that are timely imposed in order to protect any confidential information that might be involved.

The next term that’s the new definition is written or writing, which of course is what it sounds like. But the idea here is we’re chasing technology. The new definition will encompass any form of memorialization of information that is, it can be hard copy written on paper, it can be any form of electronic cording or memorialization and it can include video or sound recording. So we’re trying to cover the waterfront and how you actually reduce information to a written form. Then finally, a term that’s already in the terminology section, which is fraud or fraudulent is amended by including one word and that is negligently. And the point of including that word is to point out that for something to be fraudulent, it must be purposeful and intentional negligent. Failure to disclose information is not going to be enough for it to constitute fraud.

Rocky Dhir:

This all sounds like great marital advice as well. Honey, can I watch the game this weekend? You need to get consent best. You get it in writing and you better not fail to apprise her of relevant information. Absolutely.

Scott Brumley:

So

Rocky Dhir:

Aren’t you glad you tuned in? But Scott and maybe for the rest of the committee, here’s the bigger question is why do we need to make this into a rule? I mean if it’s already there in the terminology you think lawyers already know what means, why make that into a quote rule.

Scott Brumley:

There’s a couple of solid reasons I think. One is of course, as Claude mentioned earlier, it’s important to try and stay updated with the terminology. And this is of course with the new definitions and the changes that’s part of that effort. More directly though it takes what is currently in a advisory section of the rules like the preamble and moves it into an authoritative substantive rule. And lawyers are used to researching issues and if they come upon a term of art or something that’s specifically defined, the first place they’re going to look is they’re going to go to the front of the statute that they’re looking at and look for the definitions. Sure. This facilitates that kind of research and ability to understand within the disciplinary rules.

Lewis Kinard:

Okay. It makes it really clear that these are not just advisory definitions, these are elevated to the status of rule, just like a statute’s definition section is in that statute.

Rocky Dhir:

Has the committee found any examples of lawyers being confused by definitions in the past? Was that part of the reason of why we’re adding some of these definitions? Things like fraudulent or just clarifying some of these definitions? Those

Claude Ducloux:

Are usually developed by the CDCs office and case law involving grievances where they said, but wait a minute, I might’ve misstated that but I didn’t do it intentionally. So that shouldn’t be fraud. And so one of the things we learned in doing this early on is that we don’t explain the rule within the rule, but there’s tons of comments that we write. There’s what it gives the lawyers great guidance. So the first thing we say when looking at the rules, also look at the comments. You go, oh, that’s what that means because we’re not going to say, and when we say that we mean this, those are in the comments. But the whole point is what Lewis and Scott said, these are to modernize the rules, to update the rules, to clarify the rules to protect the public. And now we have another issue which we’re going to be covering later, and that’s to protect aging lawyers and finding ways to help them when they have to cease spread. I

Rocky Dhir:

Resemble that remark about aging lawyers. I tell you

Claude Ducloux:

As much as I do

Speaker 6:

Before we continue this conversation, we’re going to take a quick break and hear a word from our sponsors and we’re back.

Rocky Dhir:

I’m glad you chimed in because we also need to talk about rule 1.08, proposed rule 1.08, dealing with conflicts of interest and prohibited transactions. What can you tell us about that? Well, we’ve

Claude Ducloux:

Always had the rule in Texas, they have generally that you can’t include yourself in your client’s will because that gives you something, I call it the beloved attorney clause. So anytime that you want to take any sort of interest or ownership or pecuniary thing from your client, you have to follow certain rules. Now our rule is okay as it is, but because I have this opportunity to speak across the country, I read these other rules in other states like Minnesota and others, they go, wow, these are much, much more elucidated rules. So I said, let’s have something like that. In other words, I actually was an expert witness where a client said, the lawyer said the client promised me X. Well, but that’s not in writing and so there should never be a swearing match. So this give the lawyers a three-step process if the client wants to give you something or if you want to take any interest or claim an interest, you have to do these three things.

You have to explain the terms of what your deal is in very understandable terms. You have to be told to be in writing, go get counseling and as the comments will tell you, and that counseling will not be by your law partner, it’s got to be by a third lawyer. And only when they are ready they’ve got to be consent and it’s got to be in writing. So that’s a very clear three step process of what happens when you come. There could be a contingency fee where you don’t get money but you get an interest in the recovery and the glos, now you have an undivided, what do you do with that? So this rule is a great improvement. I think lawyers are going to like, it gives you a very clear process what to do. Anytime you want to seek ownership or accept ownership or accept a pecuniary or interest or anything adverse to the client, this rule will help you out.

Rocky Dhir:

But now does that,

Claude Ducloux:

But there are a former client, it depends, I guess it depends on what the business is, but you should always do that. I would always consider that even with a former client, you want to make sure that you observe your fiduciary duty. That’s a good way just to live life

Rocky Dhir:

Really. It’s always better to do more than to just read the rule and do the

Claude Ducloux:

Minimum. And the best thing I always tell young attorneys is put it in writing. When your client tells you something, put it in writing and send it back to them. This is what you told me to do.

Rocky Dhir:

And maybe throw in an emoji just because it’s 2024, we got to do this. So let’s talk about ballot item C. This also deals with conflicts of interest, but this time we’re talking about former clients. We are,

Lewis Kinard:

It’s amazing you brought that up. So we’re all pretty familiar with the concept of, well two, you can’t represent both sides to a conflict at the same time. Wait, what? Yes, it’s new newsflash. The other is you can’t represent a new client in the same or substantially related matter as your previous client if they’re adverse, this clarifies that. It takes it to a lot more detail. You have more specifics as to what that really means and how you can decide or your firm can decide if there’s an imputed conflict based upon your prior representation of a party that has a materially adverse position to their current client or whichever way you’re trying to go. You’re trying to represent a new client that may be involved in a same or substantially related matter. So the same or substantially related matter test is still there. It’s broken out in a little more detail.

And then we’ve taken one of those paragraphs, we’ve moved it into what we become one 10, I’ll talk about in a second, but the most important parts about 1 0 9 is that you still can’t represent the same person, same substantially related matter. If you’re materially adverse to your former client, you can’t knowingly represent a person in which that firm had a client that was adverse in the same or substantially related matter and you can’t use any information you got in that prior representation in any way to harm that former client. So you look back to 1 0 5, the protections there, it invokes ’em back here and 1 0 9,

Rocky Dhir:

It almost sounds like a complete overhaul of what we had before. Is it or I mean is it’s

Lewis Kinard:

A rewrite because editing was too hard. The concepts aren’t substantively much different. They’re just clarified. 1 0 9 was not really the clearest rule, but people did their best and tried to follow it. We’re trying to make it clearer. And of course when we talk about one 10, we’re going to take that now and create a whole new concept

Rocky Dhir:

With 1 0 9. Did the committee actually get some kind of feedback on the prior rule? I mean is that what brought about this change?

Lewis Kinard:

I think the most important thing was realizing how much better the model rule was. The ABA a’s equivalent of this rule, how much better written it was. And after having been out there for years, it passed a pretty good test. It’s been adopted in most states and it was just better written than our, so it was just due for an overhaul. And again, our goal, as Claude said, is we’re always trying to make it easier to understand. The goal really is that every lawyer should be able to look immediately and tell what she or he can or must or must not do to avoid discipline so that you’re protecting yourself and your clients.

Claude Ducloux:

In the old rule, there was some question of what did they mean by previous client and something that you learned, you could always argue it both ways. This makes that clear if that information is relevant to the situation, you can’t use it to help another client or yourself because I’ve had those arguments with judges, but it says he’s no longer a client, so why can’t he use that information? This is going to make it clear

Rocky Dhir:

And obviously as a lawyer you’d still have to keep all your former client’s information confidential that this does not, just because you comply with rule 1 0 9 doesn’t mean now suddenly attorney-client privilege is

Lewis Kinard:

No 1 0 5 is still there.

Rocky Dhir:

Okay, yeah, just want to make that clear to everybody out there that this is not changing attorney client privilege. I can see somebody possibly having that question and so no worries there. Now Lewis, you’ve talked a couple of times about rule one 10 and so let’s jump right into that. That relates to the imputation of a conflict of interest. That’s a big word, imputation. So why don’t you help us kind of parse

Lewis Kinard:

Through this. Do you want me to spell that or is it okay?

Rocky Dhir:

Are you challenging me to a spelling bee? I mean, come on.

Lewis Kinard:

No, so one 10 is actually an expansion of what is currently 1 0 9 CC of part 1 0 9. And I mean really, and it’s an expansion. This is new for Texas. Texas is one of the few states in the country that still does not permit what we call screening of a new lawyer coming into the firm that may be bringing imputed conflicts of interest with her and allowing that firm to continue to employ this lawyer as well as keep their current clients. Firms that have multi-state offices already know how to do this. They’ve been doing it for a while, but Texas firms have been disadvantaged. They haven’t been able to bring in lateral hires as freely, especially in smaller areas where there’s fewer firms to change. Sometimes you have to change, a firm dissolves and you’re looking for something else. The idea is that Texas lawyers need this.

It’s way past due that you should, and it gives you instructions on how through the definition as well as this rule, that the conflict that is imputed to your new firm will not be imputed if you do these things, these steps that are specified in the rule. Yeah. So how do you do it? How do you protect the client? And then how do you notify the former client, let them know, make sure it’s clear and it’s above board. It’s not a sneaky thing. We’re really going to keep this person out of the discussions, the files, the case management system related to this party that our firm already represents that’s adverse to your former client. Now you still can’t bring in a current client that’s adverse to the firm’s current client, just being clear there. But it makes it easy. It does bring Texas into the screening era and it does give lawyers more flexibility and career choices if they need to or choose to change law firms.

Rocky Dhir:

Because Scott was talking earlier about screening and that’s a brand new definition now. So if a lawyer is coming into a new firm, does the rule actually expound upon what protections have to be in place? Cause there’s all these cybersecurity and technology driven issues that could come up with how do you screen somebody out of

Lewis Kinard:

Most software now that firms use has the ability to manage access. If it doesn’t, then it’s probably from the eighties. So you’ve got, whether they use it or not, it’s a different issue, but the encouragement is to learn these features and use them to select who can or cannot access certain materials in that electronic system. The more paperless they get, the more firms have to know how to manage their digital rights. And we have specific comments that indicate that lawyers need to understand their technology tools and use them appropriately to protect those clients. That’s a

Rocky Dhir:

Rule that lawyers have to be technologically proficient. And

Lewis Kinard:

That’s in the comment and it’s implied in the rule. Absolutely. So that is one of the areas. There’s still going to be paper files, there’s still going to be physical evidence and other records and property, but I think they still have locks with keys that can be used on doorknobs. So you could store something away and limit access to those spaces. But seriously, it isn’t that hard and Texas has resisted the screening for a lot of reasons. Historical mainly habit tradition just being different. But this can be done and it could be done in a way that still protects clients.

Claude Ducloux:

Alright, lemme say the overarching issue here on a lot of these rules is that lawyers are very mobile. When we get to these last rules, we talk about they want to be able to live in Colorado and practice in Texas or to live in wherever in another state. And so we’ve addressed all that, but this is just a great improvement. I think in my private practice of consultation with firms, the number one issue I get is we want to hire Mary Jones from the Dallas firm to come down to, but we know that Dallas firm has a lot of conflicts with our firm. How do we do that? And it does not change the rule. The rule right now in Texas is if I worked on the ABLE case at that firm and the other side is handling the able case, I’m going to poison that firm if I come down there because there is an rebuttal presumption that I’m going to bring secret knowledge and that I will share it.

That rebuttable presumption doesn’t apply to staff like secretaries, paralegals, et cetera, but for lawyers it does. So you will conflict that out, but now at least gives you the right to say No, Mary never worked on the able case or any other case that we have. Now we can bring her in with a written plan. Everybody knows do not share anything about the Baker, Charlie Delta case with her because she’s coming from the old firm and that’s what lawyers have been really waiting for. You’ve been waiting for this rule and now you have a chance to vote for it.

Rocky Dhir:

Just to kind of summarize before we get onto the next rule, what this does is if you worked at a firm that is in conflict with your new potential firm that are steps around so that you can make that lateral move and be screened out, screened Scott, right screen, yes, that’s going to be our word of the day screen. It will be, and it screens you out from those potential conflicts. But if you work directly on that opposing matter, now you are barred from entering that new firm.

Claude Ducloux:

And this is particularly applicable to what we might call smaller practice areas, which are boutique like ip, intellectual property construction law. They all know each other, but now they have this room where they can actually move. They want to move closer to their mom and dad in San Antonio. They can follow this rule very

Rocky Dhir:

Well. Okay, well now speaking of clients and former clients, one thing we’ve not talked about is prospective clients and that’s what ballot item E does. And Judge Gonzalez, you’ve been sitting patiently listening to all of us just wax, I wouldn’t say eloquent, but we’ve been waxing some, we’ve been waxing on and waxing off. So this is new rule 1.1 8 1 18. Tell us about

Judge Phyllis Martinez Gonzalez:

1.18 really defines and clarifies, and it kind of brings in some of the definition. It talks about screening, but prospective client, what’s a prospective client? A person who consults with a lawyer in good faith. That’s also another keyword that you’ll hear about the possibility of forming that particular relationship. What this rule does, I think we all can agree, it allows lawyers another layer or several layers of protection. For instance, you have a consultation, but when it’s finished, there is no obligation after that, it’s another different layer. You have a screening component, it authorizes lawyers to be screened. And if you’re exposed to disqualifying information, this one’s a good rule. It defines and it clarifies. And of course, like we were saying, the comments just provide you a lot of guidance and a lot of information.

Rocky Dhir:

John Grisham, if you’re watching your next book is going to be called the screen. The screen, okay. I’m just saying, alright, but how does a lawyer know if a prospective client is a true prospective client under the definition and is coming to you in good faith versus just trying to conflict you out of a matter, how do you make that determination when they’re just sitting across from you?

Judge Phyllis Martinez Gonzalez:

I think you’re going to take it case by case. Obviously if the information you’re getting is going to be significantly harmful, you may not obviously take that person or take that as a client, but those are some of the protection layers that’s afforded to you with this rule.

Claude Ducloux:

And I know what people will do when this rule is passed. They’re going to have something when a new client comes in because one of the great things that lawyers are going to love about this rule is those people who try to come in and poison you. So you can’t represent their wife. So they want to tell you, I don’t want you to tell me anything. I want you to sign here that nothing will conflict me out. This is just a consultation. And I know there will be things developed just like after the first rule, we developed forms for a custodianship and there’ll be forms. You’ll have people sign because that person should not be allowed to conflict you out on purpose with no intention. If they have no intention of hiring you and they’re just coming in, they will not under this rule conflict you out by doing that. And if they convey significantly harmful information to you and you let them do that, that could be a different issue.

Lewis Kinard:

We call them drive by disqualifications and basically in the older days, someone would drop off a big box of material, say, Hey, I’m going to come back and talk to you about this case. But now, oh, he’s got all that confidence information. He and his firm now are completely unable to represent my adverse party in smaller towns. That’s really limiting to the clients. If you think about the impact on the public, it limits their ability to find a lawyer. In domestic violence cases, dozens and dozens of documented instances where the bad faith abusive spouse is trying to use the legal system abusively as well and avoid the victim from getting adequate representation. And again, in smaller rural areas with fewer attorneys, that really impacts that victim’s ability to get legal help. It hurts in business transactions in cities as well. And so as someone mentioned, the construction bar, kind of a smaller group at times, and if you start to just qualify the other side of a transaction, you’re limiting that bargaining power of that other party to your transaction. It’s way past due. Texas is probably one of five states that doesn’t have this already. I think this was a ABA 20 ethics 2020 rule that came out in 21 or two. I mean not 2020 2000 ethics, 2000 came, 2001.

Scott Brumley:

I didn’t know that.

Lewis Kinard:

And so lawyers have been needing it, clients need it. I don’t know that anybody has spoken yet against this in any of the comments and hearings we’ve had. So way past due. Good rule. It’s a

Claude Ducloux:

Good rule and it supports the other things that we teach lawyers about cybersecurity. Speaking for myself, I probably at least delete one email a day that comes in and says, please look at this file. Now, it could be, but whatever it is, I just say, I don’t accept information from people I don’t know delete. So they can’t do that, and that’s just a good habit.

Rocky Dhir:

This might also be fodder for developing pre-consultation questionnaire. You send out to folks saying, who’s the opposing party? What are you coming in for? So on and so forth. And then just give you a chance to screen up upfront, screen upfront and make sure that they pass the mail test effectively. Now, before we continue our conversation, let’s take a moment and hear a word from our sponsors. And we’re back, Scott, you gave us the word of the day so far. Let’s see if one of these other panelists is able to dethrone you because you are the king of the screen, but now we’re moving into criminal law. The criminal side with this, I think it’s a new rule. It’s ballot item F, it’s Rule 3.09 talks about the special responsibilities of a prosecutor. And if I can just editorialize, this is my favorite proposed new rule. Okay, so Scott, tell us about it.

Scott Brumley:

You bet. Rule 3.09 itself has been in the rules for a long time. None of the current provisions, sub paragraphs A through E, those remain extent what will be new are obligations that are created primarily in paragraph F. And then there’s a defense in a defense built in subparagraph G and then a definition in subparagraph h. I don’t know that this definition will be quite as hot as screening, but it’s significantly

Rocky Dhir:

Tell you it’s so short. I mean, I can sense that you’re trying to downplay this, but this is

Scott Brumley:

Huge. It’s got more syllables. It does have more syllables. It is polysyllabic. Rule 3.09 has incorporates a number of obligations that prosecutors have under current existing primarily constitutional law. One of those of course, is the well-known obligation to turn over exculpatory or mitigating evidence to the defendant as that rule is currently written. However, there’s case law suggesting that that obligation ends with trial. That is, it does not extend a rule into the post-trial context that creates problems. The committee was made well aware of by the vigorous discussion that this rule underwent and a lot of competing considerations were, shall we say, passionately presented to the committee, took about two years to get to where we are with this. But we’ve reached a rule that I think is good. It’s good for prosecutors, it’s good for defendants, it’s good for the criminal justice system in Toto.

And what the new provision says is if a prosecutor learns of new and credible information creating a reasonable likelihood that a defendant, a convicted defendant did not commit the crime for which they were convicted, that is they are actually innocent, then the prosecutor has an obligation to disclose that information. Who they disclose to depends on whether the prosecutor who learns of this information is in the jurisdiction where the defendant was convicted. For purposes of the rule, jurisdiction means the legal authority to represent the government in criminal matters before the convicting court. So if the prosecutor is in the jurisdiction of conviction, the prosecutor has several obligations. First, they have to notify the defendant. They have to notify the defendant’s lawyer. If the defendant is represented, if the defendant’s not represented, then the prosecutor is going to have to notify the indigent defense appointing authority for that jurisdiction, whether it’s the court or an office.

They’re also going to have to notify the court either way, and they also have to notify a statewide entity that examines and litigates actual innocence claims. Currently that would be the Innocence Project of Texas. Once they’ve provided that disclosure, then they need to go back and figure out is the defendant represented by Counsel? If they know the defendant’s not represented by Counsel or they can’t figure out whether they’re represented, then they have to move the convicting court to A, determine if the defendant is indigent and B is entitled to appointment of Counsel. And then the prosecutor will be responsible for cooperating with the defense Counsel by providing all new information as required by the rules governing criminal discovery. If the information is learned by a prosecutor who’s not in the convicting jurisdiction, it’s much simpler. They simply have to notify the appropriate prosecutor where the conviction occurred.

There is a defense built into the rule subparagraph G that says that a prosecutor looking at a parcel of information and they determine in good faith, very important, almost as important as screening it’s coming up, they determine in good faith that the information is not new and credible, that it doesn’t create reasonable likelihood that the defendant is actually innocent. That is, it doesn’t fall within paragraph F and so they don’t disclose it. If they made that determination in good faith, they’re still not subject to discipline even if a court later finds that that determination was erroneous.

Rocky Dhir:

And again, how do we determine what is good faith?

Scott Brumley:

Again, it’s going to be case by case,

Rocky Dhir:

Case basis. Okay, very well. I did notice that you got FG and H, so this means we all have to work as a team. There is no I in 3.09. Claude, I thought this was right up your alley. That’s why it was sitting across from me. I set it up for that joke. Okay, that right

Claude Ducloux:

There. I’m here to pass on Scott Rumley. And just to say to everybody listening, he shepherded this thing through. We worked so hard on this, but he took the lead on this. And when you get the prosecutor’s Association and the Innocence Project agreeing on a rule, that’s a pretty good rule. They think there’s enough safety. It doesn’t go too far, it’s not too little. It’s exactly what should happen if a prosecutor finds out in good faith that there’s evidence of innocence. So

Rocky Dhir:

I mean, getting very serious about this, this sounds like a very, very important development for the state of Texas. Are we catching up to the rest of the country or are we leading a charge? What prompted this?

Scott Brumley:

We are essentially catching up to a lot of jurisdictions when we examined it. States are kind of all over the place on this. And I think the committee’s idea admirably was Texas should be on the front end of this. And to that end, it was very heartening to me and I think to my other committee members that there was agreement, really lockstep agreement that this disclosure rule is absolutely necessary if nothing else. So that prosecutors are complying with their obligation under the code of criminal procedure not to convict, but to see that justice is done.

Rocky Dhir:

That might be maybe an overarching question is why wasn’t this being done? Do we have an idea or is this just something where we’re trying to put in the rules so that it gets done For sure moving forward.

Scott Brumley:

We’ve certainly heard in the last say 20 years more and more about exonerations happening and in cases involving prosecutorial misconduct and sometimes not involving prosecutorial misconduct, just oversight or mistakes made during the process. But of course when somebody’s sitting in prison, esoteric discussion about rules and potential discipline don’t mean a lot. And so I think the idea is the perfect situation is there’s never, again, another exoneration because of actual innocence. Sure,

Lewis Kinard:

Rocky, some of the larger counties have established offices that are set up to handle this. We have a lot of counties in which the entire prosecutor’s office is one person. So number one, we didn’t want to create an unfunded mandate that the ABA model was required an investigation after you became aware of this and not just notification, we couldn’t do that in a state as broad and diverse as Texas. We had to get to the point where the idea is really make sure enough people know. So you tell the defendant, you tell the defendant’s lawyer, you tell an innocence project type group. You tell the other prosecutor, you tell the judge, you tell, you just basically say, I found this out. I think it passes the muster. Somebody needs to look at this. The prosecutor doesn’t have the burden then to take care of that. It doesn’t mean they can’t, but prosecutors have a lot to do in most places. So some counties were doing it very well already. They weighed in on this as well. We had invaluable participation from the Innocence Project from the district and county’s attorney’s, Association from defense attorneys, from actual exonerated people, and even the

Rocky Dhir:

US Department of Justice,

Lewis Kinard:

The US Department of Justice. We had a subcommittees that worked, I think two or three in constituents constitution over the time period. And it just kept coming up to the line and not quite being ready would go back. An word or two need to change. We’d update and revise. And that’s how we came up to this version, which we think is the best compromise for Texas given what everybody has put into it.

Rocky Dhir:

As a non-member of the committee. Let me commend you guys on this. This is huge. Now, judge Gonzalez, there’s also, as we know, issues where you get unrepresented persons. That brings us to rule 4 0 3. So tell us what’s going

Judge Phyllis Martinez Gonzalez:

On there. So this rule really just confirms don’t give out legal advice to an adverse party, right? Pretty simple, very clean. But what it also does, it kind of gives you guidance about what you can do and what kind of communications are allowed to an unrepresented party. So if there’s a document, you can explain it, just don’t give legal advice. If you already know that there’s going to be a conflict of interest, your only advice should be at this point, you might want to hire a lawyer. Go secure. Counsel. Very simple rule. It’s a good rule. I think the main key point is do not give out legal advice to an adverse party. It’s very simple. I mean

Claude Ducloux:

There are so many, especially in Austin, you have administrative agencies where people show up without lawyers facing a lawyer. And so that lawyer never knows. They’ll say, well, what should I do? What should I do? And they need to know that you can say, well, you need to be there on time and it’s going to be on the fourth floor, but you can’t say, but you need to file this document or anything like that. So it’s really those situations where more and more judges are seeing unrepresented parties and giving you guidance. This is pretty easy and

Rocky Dhir:

Clear. That sounds clear enough. Now, let’s judge, talk then about rule 5 0 1 talking about responsibility of partners and supervisory lawyers. So

Judge Phyllis Martinez Gonzalez:

This is the new rule on the block. It’s an oversight rule. It’s a good oversight rule. It only applies to lawyers who are supervising other lawyers. And basically what that will do is give you that affirmative duty if you are a supervising lawyer to make sure that you have rules, policies, procedures in place that the lawyers you’re supervising are in fact complying with those disciplinary rules. It’s a little bit different. It’s worthy to note that it doesn’t apply to all the partners because you have to have actual managerial accountability responsibilities. And if that is you, then you have that duty to make sure the lawyers are complying. It

Claude Ducloux:

Protects the big firms who have multiple. I don’t want a partner in Chicago to fear, I’m responsible for what that lawyer in Austin did. It says, we need to have something like this, but we can compartmentalize it. If you’re the partner who supervises the environmental section, that’s your responsibility, but not the partner in Chicago who has nothing to do with. And we needed this.

Rocky Dhir:

Right. And Judge Gonzalez, if I can lean on you one more time, rule 5 0 5 talking about remote practice of law as a judge out in El Paso, you probably faced this a few times, right?

Judge Phyllis Martinez Gonzalez:

Every day. Every day. And so if Covid taught us anything, we can work remotely, we can do our jobs. And Bruce is really just acknowledging technology and how we practice law and how you practice law and how I hear these cases. So the rule really defines, there’s some multi-jurisdictional rules about don’t practice where you’re not licensed very simple and vice versa. That makes sense. But don’t help people who aren’t practiced in those other jurisdictions. But you can practice, you can maintain and practice from a place outside of Texas as long as you’re not misleading people. That is where you are licensed and that’s where you’re able to practice law that if you’re a Texas lawyer, you’re practicing in Texas, you might not be in Texas, but you just need to make sure that you’re clearing up any misunderstandings and clarifying and making sure that you’re practicing where you were supposed to be plastic. So we

Lewis Kinard:

Can be on your sailboat in Baja Rocky and doing services for Texas clients. See, and it’s okay.

Rocky Dhir:

I was wondering where my sailboat went. I’ve been looking for it. I misplaced it and now I know Lewis took it with the entire committee. Now let’s talk about jurisdiction first before we talk about choice of law. I remember learning it in that order in law school rule 8 0 5, right?

Claude Ducloux:

8 0 5 and 8 0 6. I’m going to kind of blend them, let together, let so we can get this done. Let’s do it. Basically it clarifies what we already said, and that is that lawyers are mobile and they may provide legal services in Illinois by accident. So it basically says, look, if you’re a Texas lawyer and you get a grievance, you can be prosecuted for misconduct for that occurring in Texas. And if your conduct was misconduct in Illinois under the Texas rules and 8 0 6 is all about, well, what if it’s not grievable? But let’s talk about this clarifies that a Texas lawyer is subject to disciplinary action both in Texas and wherever the misconduct occurred, even if it’s out of Texas and a lawyer not admitted in Texas who offers services in Texas that it commits misconduct is liable to be prosecuted here in Texas. You can be subject to disciplinary action, both your state of licensure and the state where the misconduct allegedly occurred.

Simply stated, the state of Texas may prosecute misconduct, which is committed in Texas by a lawyer or by a Texas lawyer or a lawyer not licensed in Texas. It clarifies that misconduct may be, but also might not be prosecuted in the state of occurrence, which leads us now directly into 8 0 6. And that is what if the lawyer says, wait a minute, I was in Missouri. And that conduct those violations of the advertising rules aren’t applicable to lawyers. Well, that gives that lawyer a defense that where was the predominant effect of his or her conduct and they say, well, wait a minute. It was in Missouri. Missouri doesn’t have these advertising rules and I was not advertising to Texas. I was advertising to people in that state. So the clear statement is under this new rule, 8 0 6 is Texas exercises disciplinary authority for conduct occurring before a court or tribunal.

They will use the rules of that jurisdiction. So if you committed conduct and misconduct in Oklahoma, they would use the Oklahoma rules, but you could be prosecuted in Texas unless the Oklahoma rule say you need to, if it’s by a lawyer, wherever he or she is licensed, those rules apply. So it’s kind of a conflict of law situation. All it does is follow the established law and make that clear. So there is no, doesn’t have to be a lot of briefing of which state rules apply because if you’re a Texas lawyer, this rule 8 0 6 will tell you which rules apply. And again, if you’re a lawyer who supposedly committed a grievable act in another state, you are allowed to argue that no, the predominant effect of that was up in Illinois or in Montana, wherever I was. And it is not a violation. So you cannot be prosecuted in Texas. And I know we’re getting a little low on time, but anybody want to add anything to that? Do you like that? I think you got it. Well, okay, now I have one more, and this is a really, really

Rocky Dhir:

Good rule. I wanted to save time for this last one because we broke new ground a couple of years ago with custodian ships. Absolutely. And this goes to that issue and follows up on it, 1305. So listen

Claude Ducloux:

Up. For years, ever since 1995, if a lawyer in your community had a heart attack or had a stroke or got hit by a car or died suddenly when nobody had managed that lawyer’s practice, you could always go to the district court in the home county of that lawyer and asked to be appointed as a custodian. Well, why would you do that? Why wouldn’t just because the appointment as a custodian under Texas law gives you what I call good Samaritan protection. So it’s a mess if somebody drops dead or has a heart attack or something when you go in and you miss, oh gosh, there was a hearing or a docket call that I missed. Well, that sort of simple negligence, you cannot be sued or prosecuted for that you can, if you steal my money, you can if you do something clearly illegal, but simply trying to handle that mess of a lawyer who has not closed his or her practice down, you can’t.

That’s why you want to be named a custodian. Well, about four years ago, we started thinking, well, why do we have to go to the court? Why can’t we have a voluntary rule where you can appoint your own custodian one or more? And so back in 2019, in November, drafted a rule along with the state bar committee to say, here’s how you get appointed. Now, by the way, I want to give 60 seconds to this. Every one of you out there can go right now to the state bar of Texas website and appoint a custodian. It is so easy on the website. And like I did when my old law partner, Aaron Dhir La Garza, I said, I appoint him. Aaron then gets an email from the state bar saying that Claude Decl has appointed you as this custodian. Do you accept this custodianship? And of course he said no.

Now he said yes, he would. But you can do that and you can appoint more than one. And we have forms now where you can say, I want to appoint Joanne because she’s also a CPA if anything happens to me to handle any of the finances. But I want Aaron, who is a litigator to handle all my cases. So you can appoint more than one. You can separate their duties. So we now have this new rule, yay, 2021. Now it was made clear in 2021 in our arguments for the Supreme Court where I think it was Justice Barbara, she said, well, wait a minute. So can a custodian take over a case? I said, absolutely. But they get good Samaritan protection. No, no. Once they step in the shoes, now it’s called practicing law. They’re subject to the rules. Well, can you write a comment?

So we all met the next day and wrote a comment saying, if a custodian steps in as Counsel of record, that lawyer’s custodianship ends and his or her conduct is guided under the disciplinary rules of conduct. So yes, if it’s a area of practice you do, you can take over a case, but then your custodianship ends. So now we came up to the natural thing. Oh, well, how do you end a custodianship? That’s what this new ballot item, it is not a rule of disciplinary conduct. It’s a rule of disciplinary procedure. It’s how to terminate a custodian. And it says, here is how a custodianship ends a, when all the active files and the property of the lawyer had been property distributed to the appropriate receivers, which are either the new attorneys or people taking over those cases, or it ends when the client’s authorized or appointed representative comes in and just says, okay, I got this now.

Or C, if the lawyer returns to practice prior to the completion of the custodianship. But this rule was never made with the anticipation custodianship is really to get rid of those files. So I know there are people going, but Claude, you told us, you all told us years ago there’s not going to come back. I said, yeah, but we have to plan for that. What if that person says that, I feel pretty good now one eye works and I want to go back to practice. You are allowed as the custodian to go to the district court and say, I think you need to look at that before you let this person out. I have a good faith feeling that Mr. DeClue can’t return to practice. Also, you have two rights as a custodian to go to court. First. If the person that you are custodian for decides he or she wants to come back to practice and you’re unsure, you can ask the court, just like a probate court, you decide whether or not this person’s able.

And secondly, what if you just have 12 files left, you don’t know what to do with him. You can go to the court and said, here’s what I propose to do. And the judge can bless. Yes, you can just put him in a storage house or send three letters to last known addresses and then you’re done. So you can ask for how do I wrap up this? So this is a wonderful, wonderful addition to 1304. This will be 1305. So 1304 is how you can appoint people. 1305. It’s how you can end that custodianship. So it’s very important.

Rocky Dhir:

Very well, I think you’ve covered everything, Claude. So Scott, were you wanting to jump in? Oh, okay. Okay. Screen. He just wanted to say screen one more time. Yes. Okay. And good faith, just to make sure before we live it, before we close out. So we’ve gone through all 12 ballot items now as a group. Lewis, anything in closing? I mean, you’ve been chairing this and you guys have been working very hard.

Claude Ducloux:

He’s been a wonderful chair. Have you all Indeed. Lewis has been a terrific chair now. Thank you. Thank

Lewis Kinard:

You. I’ll pay you later. But thank you. Seriously, no Rocky, thanks for having us. And the reason we are so glad to be here is because this is so important. This is our second time since the CDRR was formed. You may remember back in 2011, nearly half theBar voted in that referendum by 2021. We were just under one fifth. So let’s get that number up. Sure. We need people to vote. It’s a very important responsibility that goes with the privilege of the self-governance. It’s just a routine. You’re all part of our committee. We consider you extensions of us because there’s just nine of us. We need you to participate, to weigh in, to comment, to read these things, to vote on them, and to stay engaged because this should become a regular part of our self-governance responsibilities and membership in theBar so that we do preserve that we keep it. And most importantly, we keep these rules appropriate and adequate for Texas citizens and lawyers. Thanks for having us. No thank

Rocky Dhir:

You.

Claude Ducloux:

Let me just say this. All of you out there have something marvelous in your pocket, and that’s a law license. You can solve people’s problems, you can make their problems, you can make their lives better. And if you will help us to make these rules better on this normal basis, this will be a wonderful profession. Let’s make sure, let’s defend the rule of law everywhere we go. And make sure that there’s one place where you step into a room where you have to tell the truth and you have to bring evidence for your causes of action. And that’s our goal, to help you become better lawyers and to protect the public. While you’re doing that, this committee worked really hard on these rules and accepted thousands and thousands of comments and emails from you. So be a part of your profession. Be I’m a proud lawyer, I am going to vote on these rules.

Rocky Dhir:

And if you want to know how to vote, there’s going to be two ways. You’re going to get an email ballot to the email that’s on file, and you’ll also get a paper ballot only vote once. That should go without saying, but still. Okay, you get to vote once. Voting starts April 1st, 2024, and it goes through April 30th at 5:00 PM 2024. Alright. Now, if you want to know more about these rules, again, go to Texas bar.com/rules and you can also go to the Texas bar website, Texas bar.com and you can find your ballot there, fill in your information and Cast your vote during the voting period. So look, like everybody said, this is an important thing that we as lawyers get to do. So we hope you’ll come out, hope you’ll exercise your right to vote and make it an informed vote. Go study these rules. Thank you for listening to us today. But take all that together. Figure out how you feel about each rule, because you get to go to each one and say yay or nay. So make it an informed decision. They’ve worked very hard. These are tremendous rules and we’re looking forward to moving this bar even further forward. So again, thank you, the panelists, thank you to the committee. You guys have done tremendous work. And guys, thank you all for joining. This concludes our webcast and we wish you all the very best. Thank you. My name is Rocky Dhir. Bye-Bye.

Speaker 1:

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