We Win. For the Moment.


Texas Lawyer Blog: State Bar of Texas members vote down proposed amendments to Disciplinary Rules of Professional Conduct

A big “thank you” to all who voted and encouraged others to do the same. Forty-percent turnout is apparently astounding for such a referendum.

State Bar President Terry Tottenham said, “We expect that this will not be the end of the Supreme Court’s interest in making revisions to these rules.” According to Lillian Hardwick‘s account, however, “the Supreme Court of Texas appointed a task force to assess the need for changes to the Rules and to suggest new language.” (PDF; emphasis is mine.) Most of these changes are not only ill-considered, but also simply unneeded.

In the next go-round, let’s see if we can get them to let us vote on each rule or amendment as the statute contemplates, so that we can pass the worthy rules (no sex with clients) without eating too much excrement. Meanwhile, any bets on whether the SBOT will let us know without a fight how badly their proposed rules got crushed?

[Update: they gave up the numbers without a fight: it was pretty close to 80/20, except on Question D, which included the no-sex-with-clients rule; that one was about 70/30.]


14 responses to “We Win. For the Moment.”

  1. Does this mean I can’t get the two hours worth of ethics credit for the Bar’s pro-amendment webcast? Because that was shaping up to be the best thing about this whole damn mess.

  2. On behalf of those of us with inactive Texas licenses who couldn’t vote but might be affected by the rules changes, and on behalf of all of us around the country whose local Rules folks might have seen these changes as something worth adopting,

    YIPPEE!!

  3. I don’t see how “no sex with clients” is a worthy change. Do we really want the grievance board listening to tales of lawyer/client coitus? It’s inventing a victim where none exists, assuming that clients are not capable of making the decision of what to do with their naughty bits. It’s some left over Puritan non sense, labeled as “client protection.”

    You can make sweet love to your plumber, or your accountant, why not your attorney? Are we adults? Are our clients (mostly) adults capable of consent? Then it’s none of the State Bar’s business what goes on between the sheets.

  4. Mr. Guest,

    When you say: “assuming that clients are not capable of making the decision of what to do with their naughty bits.” What exactly are you saying? Have YOU ever bedded down with a client? Do you think this kind of behavior is helpful to a professional boundary representation for VERY serious matters affecting people’s lives like – oh – freedom – custody – life savings? You don’t appear to hold lawyers to the highest of standards by comparing our profession to plumbers. I would certainly think you are n the minority of Professional lawyers in Texas who believe there does need to be SOME rule in place in this area – though they honestly didn’t like wording or ballot placement of the Proposition that failed. I do however urge you however to post on your Web Blog EXACTLY what you have posted here. Wonder how the good “salt of the earth” people from your (seriously) honorable County of representation would feel about a lawyer wanting their business thinks: ” “assuming that clients are not capable of making the decision of what to do with their naughty bits” – It’s OK to bed them down – consenting adults and all that…

    Man! I can’t even believe you weighed in on this matter as not EVER being necessary….wow!

  5. Yeah, I meant to leave “not” out of that sentence. That does look pretty bad in hindsight. What I meant to say, what “assuming client ARE capable”. It’s a typo, moving on. Obviously I’m not for attorneys having sex with non consenting clients, or anyone who doesn’t consent for that matter.

    The point is, these are consenting adults, so it’s not the State Bar’s business who they have sex with. The Bar has no legitimate interest regulating the sex lives of attorneys.

    If sex with a client doesn’t violate some other rule of professional conduct, or violate some other ethical boundary, then who gives a shit?

    • We knew it would be spun that way; that’s no surprise.

      What baffles me, however, is that you—and the State Bar—can go on insisting that the Texas Supreme Court can promulgate the rules on its own, in light of Section 81.024: A rule may not be promulgated unless it has been approved by the members of the state bar in the manner provided by this section. Kindly explain.

  6. Ah, but that is where you are mistaken. Think about it (in case law school was so far back that it is murky): under the Texas Constitution, there are 3 branches of government. Do you really think the legislature could trump the judicial branch? The Supreme Court has inherent authority to govern the practice of law in the courts of this state and the boundaries outside of which lawyers can be disciplined. Should it so choose, it can issue rules that appropriately protect the lawyers and the public. (And isn’t that statute named the “State BAR Act?”)

    (I know you can find plenty of case law on the court’s inherent authority.)

    Whether it will or not remains to be seen.

    • Oh, I see. The Texas Supreme Court can do it in the sense that it can do whatever it wants because the Texas Legislature can’t do anything about a supreme court gone rogue. Gotcha.

      I’m feeling pretty comfortable that the Texas Supreme Court doesn’t ignore both 81.024 and the expressed preference of 80% of voting Texas lawyers.

      If it did, however, I’m thinking the State Bar (which is a creation of the legislature) couldn’t enforce those rules.

  7. The Court may be considering the fact that only about 36% of the membership voted against the rule changes, some of which were going to benefit them (like taking the strict liability trap out of the Safekeeping rule and reducing the list of 3rd parties one must notify). I can only guess what they will do. As of Friday, they maintained that they had not begun to decide.

    (The State Bar is under the Court’s administrative dominion, so I don’t see your point in that last statement.)

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