Texas Disciplinary Rules Referendum: Former Committee Member Urges “No” Vote


Harlingen, Texas criminal defense lawyer Larry Warner has been practicing law for 37 years. He served for three years on the State Bar Disciplinary Rules Committee charged with drafting the proposed rules. He served as a member of the Texas House of Representatives and has taught professional responsibility to law students. He is also board certified in criminal law.

Warner writes:

For three years I was a member of the State Bar’s committee charged with drafting the proposed new disciplinary rules. After that experience, I strongly recommend a “No” vote on the referendum.

The committee’s work did not result in any minority report. Dissent was not considered, tolerated, or forwarded to the Task Force/Committee meetings.

In over 37 years of practicing law, including ten sessions as a member of the House of Representatives of Texas, I always had to know what the other side was going to say. If I was on the losing side at committee, at least we got to submit a minority report to the whole House on the floor and got to try again. As insurance defense counsel, plaintiff’s lawyer, prosecutor, and defender of those sentenced to death, my ability to represent my client properly and well depended on how well I knew the other side’s case.
Lincoln’s advice to lawyers was “Encourage your clients to settle their disputes, there will be lawsuits enough.” Resolution of differing opinions depends upon respect for the opposition and a willingness to listen with an open mind with a view toward reaching a decision if one can be reached without violence to individual conscience and judgment. (Shades of jury instructions.)

The Committee was presided over by a law professor. The settlement conferences among lawyers that Lincoln envisioned did not take place in the Committee. The chair seemed to have her marching instructions. General Sherman’s march to the sea comes to mind.

The American Bar Association is to release another round of proposed new rules in 2012. We’ll have to do the entire process again then. The current draft is not ready for adoption. It is simply too flawed. Let’s defeat the referendum, and go back to the drawing board when the new ABA suggestions become available. And let’s open up the rule-making process to diverse viewpoints. In the long run, that approach will be cheaper and will make for better, sounder rules.

Please vote “No” on this referendum.

If you haven’t voted yet, vote “No” today. If you voted yes, try to change your vote.


4 responses to “Texas Disciplinary Rules Referendum: Former Committee Member Urges “No” Vote”

  1. ONLY REGARDING PROPOSITION “D”: DON’T HAVE SEX WITH YOUR CLIENTS – PERIOD! BRIGHT LINE RULE!

    ONE TRICK PONY BROKEN RECORD STANDLEY here AGAIN! I don’t care how many damn meetings, committee conferences and the like have taken place over the last 15 years! No wait – how bout SINCE 1938 when the State Bar of Texas was created. Who needs ANY guidance whatsoever that this ONE RULE should PASS – NOW? If ALL these rules fall – and I KNOW “we” don’t give a damn “what people think” – but for the love of God this is just idiotic that the media won’t be printing how this or that Flat Fee Rule fell flat. What we will see is: Texas Lawyers Voted DOWN OWN PROFESSIONAL RESPONSIBILITY RULE PROHIBITION against having sex with clients. It’s interesting though how historically the one profession that has made up State and Federal Governmental Law and Rule making decisions across this great Country have been and are Attorneys. Yes – the very same profession that made it a CRIME for Mental & Medical Health professionals AND SPIRITUAL advisers to engage in the same conduct. At least THESE “Professions” have a simple little professional conduct rule of their own – yet they get a CRIME on the books to boot. Lawyers get neither! How much more of an emotionally charged and emotionally dependent victim rich environment can one ask for with a human being facing their own or a loved one’s loss of Liberty, Money and custody of chattel – oh pardon me – CHILDREN?

    I respectfully ask all members to Vote FOR PROPOSITION “D” – EVEN IF Moses himself writes a post in this distinguished Blog advocating the opposite. Thank You for your time.

    Larry

  2. Hi, Mark–

    Whatever version of the Texas Disciplinary Rules is in effect after today, I would be happy to speak to a group of criminal defense attorneys about compliance with the Rules. I have conducted quite a number of CLEs for lawyers in particular practice areas, and I always try to learn Rules pitfalls awaiting lawyers in their areas so I can tailor the presentation for them. As I and others have said multiple times, the supposed “flat fee” issue exists under the 1990 Rules in Texas, as well as the proposed Rules.

    I’ve not had much exposure to criminal defense work. I did, however, prepare–at no fee–an expert report in connection with a grievance filed by a prisoner a couple of years ago. As he has now been released, I guess he had a point somewhere. That was Anthony Graves.

    Also, when requested by court-appointed defense counsel last year, I prepared a report opposing the District Attorney’s motion to recuse a judge. That motion was ultimately denied, so I hope my report helped. My fee was ultimately paid by the State, which I thought appropriate, as I never saw a basis for the recusal motion in the first place.

    As to Larry Warner’s post, Larry was quite confused about a number of aspects of the Committee. First, I think that Larry got appointed to the Committee right about the time that his work peaked, as he missed quite a number of meetings. I regretted that, as we wanted a criminal defense attorney on board once Walter Steele went off the committee. Larry came onto the Committee right as I became sole chair. All of the Rule language had already been sent to the Court and debated with the Task Force. Thus, that ship had long since sailed, and none of us–including Larry but not just Larry–revisited Rule language. Our job at that point was to work on comments, which never much seemed to interest him. I’m sorry that Larry never quite understood this, as I explained it to him whenever he did show up for meetings. I will say that Larry often had a difficult time understanding when and where our meetings were, although he received the same notices that everyone else did. I’m sure his busy work schedule was to blame.

    Also, I’m pretty flattered that Larry thought I was a “law professor.” Maybe he confused me with Bob Schuwerk, my co-author on a treatise on Texas lawyer and judicial ethics, who is a law professor and has done quite a bit of pro bono work with criminal defendants. Bob was on the Committee then and still is. I always started each Committee meeting explaining what we were doing and why. Again, had Larry not missed so many meetings, maybe he would have been clearer about our mission.

    So, no, I wasn’t earning a law school salary while on the committee. I also wasn’t a member of a firm and enjoying the benefits of work of associates. Years ago, when I started doing consulting work, I decided to stop doing any advocacy work (i.e., representing clients in the conventional sense). I figured that an “expert” who acts as an expert one day and an advocate the next can get the roles confused, and I wanted to offer expert advice in as objective a way as possible. And, yes, that cut into my income quite a bit, as I waited for my consulting business to grow. Then when I became chair of the Committee, that work became all-consuming, as it was so important. I turned down consulting jobs if they would interfere with my Committee work. Apart from the small amount of royalties I receive from the treatise Bob and I write, my only income is from my consulting work. (Oh, yes, I receive about $1200/year from online CLEs.) Thus, every hour I spent on the Committee work was an hour I couldn’t spend earning consulting fees. In my peak months (and there were many such months), I spent 100 hours a month with the Committee work.

    So if I can help, please give me a call. I figure that I have learned what I have on the Committee and about the Rules so that I can share it.

    Lillian B. Hardwick

    • Ms. Hardwick, thank you for your comment.

      I wouldn’t be too flattered, if I were you, by the description of you as a law professor. There are large swathes of the profession in which that isn’t a compliment.

      Saying multiple times (as you and Professor Schuwerk have indeed done) that something is the law does not make it true. My posts here and here might interest you in that regard; I’d love to hear what support you have (beyond Professor Schuwerk’s sworn “I think that’s false”) for your repeated assertion.

      Mark Bennett

      p.s. Robert S. Bennett? Really?

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