Texas Ethics: What you need to know now

Things are happening in Texas courts, at the State Bar, and in the Texas Legislature that could affect your practice. Here are three things that you should know about today:

Here We Go: Texas Courts Are Now Allowed To Proceed with In-Person Hearings and Jury Trials.

On March 5, 2021, the Texas Supreme Court issued its 36thCOVID-19 emergency order. Finally, the prohibition against in-person proceedings, including jury trials, has been lifted, albeit only in certain circumstances and after certain protocols are put in place locally.

This is a bit of good news for litigation clients who have had their cases frozen for the past year waiting for a final trial.

Courts can of course continue to hold remote proceedings, and participants may opt to appear remotely. 

The Order is summarized in a recent Texas Bar Blog. Exactly how and when in-person proceedings will begin depends on how quickly your local Judges can establish and adopt the protocols and procedures required by the Order to ensure the continued safety of everyone involved. 

Because of this you should check (frequently) the local websites of the individual Judges, Courts and Counties in which you have cases pending so that you don’t miss any of the new rules or procedures that result from this Order.

The State Bar President’s “grievance taskforce” is ready to receive feedback from Texas lawyers.

You may have seen the State Bar President’s “President’s Page” in the Texas Bar Journal about his Task Force that is “ensuring the grievance process is fair to all”.

In the 4 months since it was formed, the Task Force has received input from selected stakeholders (like the Chief Disciplinary Counsel). The first opportunity for Texas lawyers to provide feedback is now upon us. With a projected finish date in April, the Task Force will have little time to debate/consider the input of those affected by the grievance process. 

So now is the time to act. We have been invited to provide comments in writing or to sign up to speak at one of two public feedback sessions taking place on March 10 and 24. You can sign up at the links in a recent Texas Bar Blog

My Firm will be addressing my concerns with the Investigatory Hearing process and procedure, specifically, the lack of due process afforded Texas lawyers who are “invited” to participate and then presented with “findings” after a “non-adversarial” proceeding. 

This is just one aspect of what the Task Force needs to hear from Texas lawyers and it comes from my experience representing lawyers around the State in disciplinary proceedings. 

If you have experienced the grievance process and have insights or helpful suggestions about how the grievance process can guarantee Texas lawyers due process while remaining fair to the general public, please think about sharing that with the Task Force. While they don’t want specific grievance stories (which are confidential), the best way for them to actually understand what it feels like to go through the process is to hear comments from Texas lawyers who have experienced it first-hand.

I urge you to take this opportunity to share your concerns and comments with the Task Force. 

The Texas Legislature is Back At Work.

The Texas State Bar earned the right to continue to self-govern when the Texas Legislature passed SB 302 (the “Sunset Legislation”) in 2017. This included the creation of a new committee to research, write and propose amendments and changes to the disciplinary rules—presumably without the interference of the Legislature.[1]

If you thought the Texas Legislature was done interfering with the Bar—consider SB 247, a bill that would amend the Texas disciplinary rules to protect the “sincerely held religious belief” of every Texas attorney from a hypothetical disciplinary rule based on ABA Model Rule 8.04(g) that is not being considered and will likely never be considered or adopted in Texas.”[2]

I won’t opine on why the Texas Legislature is even talking about a pre-emptive strike on a disciplinary rule that does not and is not likely to exist in Texas. But since it does not exist, the relief supposedly provided by SB 247 is not necessary. There has never been any incident of a Texas lawyer being disciplined for expressing sincerely held religious beliefs and the right to be free of government interference in the expression of such beliefs is already guaranteed by the Texas and United States constitutions. 

Plus, the State Bar already has in place procedures for appealing disciplinary and admission proceedings that can be used by anyone who believes they are being subjected to religious discrimination. Federal law also gives a judicial remedy to those who claim state actors are infringing on their freedom of religion. 

The Legislature is confronted by enough real problems; it should not waste its time or taxpayer dollars on imaginary ones.

Don’t take my word for it. Take a look for yourself. SB 247 addresses no legitimate facts or concerns and, if advanced, will bring the kind of negative attention to the State of Texas (and Texas lawyers) that drives away businesses and their executives and employees. 

Surely we can all agree we would like to have those businesses as clients.

[1] You will recall that in 2017, SB 302 created a new entity (the Committee on Disciplinary Rules and Referenda (CDRRR)—whose members are appointed by the Texas Supreme Court) to amend/create disciplinary rules that would protect the both the public and members of the Bar.

[2] ABA Model Rule 8.04(g) was adopted by the ABA in 2016. There was a firestorm of comment and controversy at the time, and the sponsor of SB 247 sought and obtained an opinion from Attorney General Paxton in 2016 in which the AG concludes that, if adopted in Texas, ABA Model Rule 8.04(g) would most certainly be struck down as unconstitutional.