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.