Somewhere He Opens A Window . . .

It has been weeks since the Texas Supreme Court closed the door on the amendments to the Texas Disciplinary Rules of Professional Procedure, but it left open a window.

As you may recall, the Court was required to adopt amendments to the disciplinary procedural rules in accordance with the Sunset Legislation (SB 302, in part contained in Government Code Section 81) by March 1, 2018. The Court did so, but in the Order Adopting those amendments it further ordered that the amendments “may be changed before June 1 in response to public comments” sent to rulescomments@txcourts.gov by April 30, 2018.

So let’s comment.

I have already blogged twice on this topic (Part 1 and Part 2) and identified what I believe are serious problems with the amendments and, along with others, sent comments during the initial comment period.

Now we have one more chance to appeal to the Supreme Court to fix the amended rules so that they both (1) comply with the underlying statute and (2) provide attorneys caught up in the grievance process the due process to which they are entitled.

We have prepared a Memorandum to the Supreme Court outlining some of the most egregious and obvious problems with the amendments. You can download it using this link: “Supreme Court Memorandum.” If these problems are not fixed we believe that the provisions we highlight risk being held unconstitutional if challenged.

If you want to add your name to the Memorandum, email me at jhuey@hunthuey.com by April 27, 2017 and I will tell you how to do it. If you want to use the arguments we make in this Memorandum or in either of my two prior blogs in your own comments to the Supreme Court you are welcome to.

There will be no referendum or other opportunity to change these rules before they are truly final.

Whether you agree with our conclusions or not—make yourself heard now before we are stuck with the amendments as currently written for the foreseeable future.

And thanks and gratitude to my partner and co-author, Richard Hunt. Those of you who know him will recognize his persuasive prose and razor-sharp analysis throughout the Memorandum.

 

 

You Can’t Be Good If You Feel Bad

Lawyers are in bad shape as far as “wellness” goes. This was made all too clear last week by ABA President Hilarie Bass’s “call to action” in her article in the New York Law Journal in which she reminded lawyers of the need to take care of themselves and the importance to the profession of making sure that other lawyers do the same.

The article cites to the story by a big firm lawyer in which he chronicled his struggle with depression that was published just two days prior–on March 28, 2018.

March 28 was the ABA Law Student Division’s official “National Mental Health Day” at law schools around the country.

How sick are we?

Recent studies confirm that, in alarming numbers, attorneys practicing today are more likely than non-lawyers to suffer from:

  • Substance abuse: 21 percent of lawyers qualify as problem drinkers and use alcohol at a rate 25% higher than the general population.
  • Depression: Lawyers are 3.6 times more likely to suffer from depression than non-lawyers.
  • Suicide: Lawyers ranked fourth, right behind dentists, pharmacists and physicians.(comparing the proportion of suicides in that profession to suicides in all other occupations)

This should not come as a surprise to those of us who have practiced law for any length of time. Most of us know fellow lawyers whose careers were interrupted or destroyed by substance abuse or mental illness.

We also know lawyers whose mental health creates additional stress for us as opposing counsel.

There is a proposal in the ABA to include mental health as an additional element of competence in the model disciplinary rules. You would think this is implicit in the meaning of competence, but while most lawyers manage to cope with the pressure of practice with a certain amount of professionalism there also seem to be more and more lawyers who are taking their inability to cope out on clients, judges and opposing counsel. This lack of professional conduct–regardless of the cause–undermines the integrity of the profession and creates additional and unnecessary stress for everyone involved.

Three things have contributed to the current crisis.

Old fashioned pressure: The traditional stresses we all signed up for when enrolling in law school still exist and don’t seem to be going away anytime soon: Long hours at work, success measured by income, feelings of isolation, high-stakes career making and breaking cases, difficult clients and cut-throat work environments.

New fashioned pressure: A couple of decades into the internet era we are still learning how to cope with a technology-fueled 24/7 law practice in which clients and partners demand “everything, all the time”.[1] Today the ordinary practice of law is like driving on a German autobahn with no speed limit and no off ramps.

The threat of obsolescence:  Technology has reduced the need for much of traditional lawyering, especially the parts that were easy and therefore low stress. The result is more stress as more lawyers chase less and less work. As noted in the ABA’s National Task Force on Lawyer Well-Being August, 2017 Report (the Report): “Our profession confronts a dwindling market share as the public turns to more accessible, affordable alternative legal service providers.”

What is being done?

The crisis has not gone unnoticed by the ABA, who, in 2017, proposed a new Model Continuing Legal Education (MCLE) Rule that recommends mandatory mental health programming for lawyers–at least one credit hour every three years.

Baby steps.

For law students, one recommendation from the Report is that law schools be required to include well-being education in their curriculum in order to obtain ABA approval. The Report, aptly subtitled: Creating a Movement to Improve Well-Being in the Legal Profession, is full of suggestions for creating wellness and includes detailed recommendations for Judges, Bar Associations and legal employers.

What can we do in Texas?

Read the Report and put its recommendations into action where you meet other lawyers–at your firm, your local Bar Association or committee, or at the State level.

Maintaining the profession’s integrity and providing the excellent service our clients demand and deserve requires a mind that is not only intellectually but emotionally capable. In an increasingly stressful profession we can no longer take mental health and wellness for granted, and each of us shares in the responsibility to protect the profession and each other.

The Tennessee State Bar is apparently breaking ground in this area and has already revised its CLE requirements to grant ethics and professionalism credit for a broad set of well-being topics. It seems obvious that this is the next step, and there is no reason for the Texas State Bar to wait for the ABA or anyone else to propose new or additional requirements or standards in order to put the kinds of programs in place that the Report recommends.

For my part, I intend to continue to add a wellness component to the ethics CLE programs that I offer, utilizing both my training and experience as a lawyer and as a 500 hour Registered Yoga Teacher (RYT).

Join me in asking the Texas State Bar to address wellness now.

Our standard CLE offerings should routinely include programs on self-care and wellness so we can learn to prevent problems instead of just coping with the aftermath. We need not only traditional CLE on things like time management but also courses on a wide range of self-analysis and coping techniques. No single program will fit every need, and  an hour or two of CLE isn’t a solution, but it might just serve as a spring board within the local Bar, a firm or among colleagues for conversations about the benefits of stress reduction programs and ways to identify and address the problems of stress before they result in disciplinary action, a loss of clients or worse.

Remember: If you have a problem or know someone who has a problem the Texas Lawyers Assistance Program (TLAP) provides confidential help for lawyers, law students, and judges who have problems with substance abuse and/or mental health issues. Its confidential hotline can be reached any time of day or night at 800/343-8527.

[1] “Life in the Fast Lane” by the Eagles (1976).

Changes to the Ethics Rules: Part Deux

You may have heard fellow Texas lawyers talking about how “easy” it will be to change the disciplinary rules for the State Bar of Texas under the statute enacted pursuant to the Sunset Legislation. The statute, located in the Government Code, went into effect September 1, 2017 and was supposed to make it easier to change the disciplinary rules and to implement immediately some changes the legislature thought were important.

Let’s review how we got here:

Since 1993, the Texas Supreme Court and the State Bar have conducted five referenda to try and amend the Rules of Professional Conduct or the Rules of Disciplinary Procedure (the “ethics rules”); only two of them passed.

The new legislation’s sponsor put it plainly in his statement of intent. He stated that we need a new rule making process for the ethics rules “because the most recent attempt to revise them took about six years, alienated many attorneys, and resulted in no changes.”

The Sunset Committee’s initial recommendation was to eliminate the referenda process (take away our right to vote on proposed rule changes). Many of you spoke up and that recommendation was not adopted. Texas attorneys retain the right to vote on rule changes.

In order to facilitate more frequent reviews/changes to the ethics rules, the law provides for the creation of a new rules committee to review the rules annually, and new procedures for more frequently amending/updating them. (See Subsection E-1).

If you want to read all the details about the new rules committee and rule making procedures, check out the Government Code  or go to the Texas Lawyer article from January that includes the names of the committee members and summarizes the new rule making process.

Suffice it to say, since they were only recently appointed, the new rules committee has not had time to make any proposals for changing the ethics rules.  Only time will tell if the new procedure will result in more frequent/relevant/helpful ethics rule changes than we have historically had in Texas.

Where did the new proposed rules the Bar emailed us in January come from?

Those proposed new rules were directed by the legislation. This is another way that the Texas Supreme Court can make rules governing attorney discipline.  Included in the legislation is a section that mandates that the Chief Disciplinary Counsel (CDC) propose and the Supreme Court adopt new rules to enact many of the changes to the ethics rules that are set out in the statute. (See 81.083 and Section 15).

This would be fine as long as the proposed rule changes accurately reflect the law.  Unfortunately, some of them do not.

We’ll start with the crucial statutory provision allowing the CDC to issue subpoenas during the investigative phase; that is, before the CDC’s office finds “just cause” to act on the complaint. The statute states that any such subpoena must “relate directly to a specific allegation of attorney misconduct.” (Sec. 81.080). In other words, no fishing expeditions, just a tool for investigating specific allegations.

What the CDC has proposed does not include this critical statutory limit. Instead it requires only that the subpoena “relate” to the “complaint”, and further states that any objection will be ruled on based on “materiality”. (Proposed Rule 2.12). Complaints are usually written by non-lawyers and may include a host of poorly defined  grievances that may or may not constitute ethics violations. Only rarely will a complaint refer to a specific ethics rule. One of the things the CDC’s office does after a finding of “just cause”  is refine the complaint into the petition filed by the State Bar that does include references to specific ethics rule violations. If the only limit on the subpoena is that it “relate” to the complaint there will be very little the CDC cannot subpoena. Instead of investigating the allegations in the complaint, it may choose to engage in a free-wheeling investigation of the attorney’s entire practice. That is clearly not what the legislature intended. The new rule should track the language of the statute, permitting subpoenas only if they relate directly to a specific allegation of attorney misconduct.

Another obvious example is the granting of the privilege between the CDC and the investigatory hearing panel as I set out in my prior blog. (Proposed Rule 17.08) I see nothing in the statute that authorizes this.

The rules need to state the law. I again urge you to take a look at the proposed rules and comment if you see discrepancies.

Make yourself heard by looking at the proposed rules and commenting before the February 8, 2018 deadline.

 

Things Get Crazy When The Sun Goes Down: Ethics Procedure Changes You Need to Know About

Among the first and most sweeping changes called for by the Texas Sunset Legislation is the revision of and additions to the Texas Rules of Disciplinary Procedure. Proposed changes were drafted by the office of the Chief Disciplinary Counsel (CDC) and sent to the Texas Bar membership last week for review and comment. You have only until February 8, 2018 to offer your opinions, so now is the time to read and understand the proposal. Read the proposed rules and comment to the State Bar here.

Most of the changes are intended to increase efficiency and fairness. Laudable goals, but there are problems. The most obvious is found in the new “Investigatory Hearings” procedure, and there is an issue with the new sanction guidelines that the disciplinary panels must follow.

So what is an Investigatory Hearing?

(more…)

#KeepItToYourself #LawyersAreDifferent

Yesterday’s headline in the Texas Lawyer read: “Hot Public Opinions Cost Two Paxton Aides Dearly”.

The attorneys it refers to both worked for Ken Paxton (the Texas Attorney General) and both made statements that became public and that were, by any reasonable standard, extremely offensive. The article reports the following:

-Jeff Mateer said he believes transgender children are part of “Satan’s Plan.”

This cost Mateer his nomination for a federal judgeship, but not his job at the AG’s office as Ken Paxton’s right-hand man. According to the Texas Lawyer, Attorney General Paxton says that Mateer continues to have his full support.

-Andrew Leonie wrote a Facebook post complaining that women who report harassment or abuse using the hashtag #metoo are “pathetic.” (more…)

Ain’t Nothing But A Family Thing.

Politics are everywhere and the Texas State Bar is not immune.

Membership in the Texas State Bar has been statutorily mandated since 1939 for those practicing law in Texas, and the Bar now boasts the second largest number of active attorney members in the country.

If you are a member of the Texas State Bar you probably received an email before Thanksgiving containing the incoming (2018) State Bar President’s message. I did. You may have noticed the explanation at the top as to why this message did not come from the State Bar of Texas. Apparently, the Bar refused to send the incoming president’s message to its members and so in order to communicate with us, the president-elect had his message sent by an independent group called the “Texas Lawyers for Reform.” This group claims to support bar reform in Texas and also asked in that email for a donation to support their cause.

The Emails are going to keep coming. (more…)

Keeping Client Confidences. It’s a thing.

There they were, the President’s lawyers, sitting outside at a café having lunch and engaging in a substantive discussion about the President’s current legal problems.

What could go wrong?

Sunday’s Headline in The New York Times about internal squabbles between the President’s lawyers resulted not from an interview or leaked information—but as a result of the lawyers discussing the President’s legal matters over lunch at a sidewalk café, a discussion loud enough for a nearby reporter and certainly the wait staff and many others to hear.

Was it a violation against the Rule against disclosing “confidential information”? (more…)