The following by SMU Law Professor Linda Eads was published in the January 24, 2011, edition of The Texas Lawyer.
January 26, 2011
By Linda Eads
There are three key reasons lawyers should vote for the proposed changes to the Texas Disciplinary Rules of Professional Conduct: The proposed changes are better than the current version, most of the current rules saw few changes, and a diverse group of lawyers drafted the proposed rules.
1. The proposed changes improve the rules. I won't burden readers with every improvement, but consider the changes regarding clients with diminished capacity, confidentiality and conflicts of interest.
• Diminished capacity. Proposed Rule 1.14 is new and explains how best to handle situations in which a lawyer represents a client with diminished capacity. It explains that a lawyer's first responsibility is to honor the attorney-client relationship whenever possible, even if a client has a reduced ability to understand.
But it also recognizes that lawyers often are the first to recognize when a client's diminished capacity is causing problems for the client. So the proposed rule provides a standard for lawyers in deciding when protective action is reasonably necessary. The proposed rule also makes it clear that the lawyer may take protective actions, such as talking with family or protective services, without violating confidentiality prohibitions.
This last point is key. Current rules provide little guidance to lawyers who struggle with this issue daily. The only guidance is located in current Rule 1.02(g), which gives a Texas lawyer only one option — secure a guardian — when the lawyer notices problems developing.
But appointing a guardian is not always necessary and can be draconian, causing the client to lose more independence than necessary.
New Rule 1.14 gives more options and allows Texas lawyers to use these options without violating the disciplinary rules. The American Bar Association also has adopted such a rule.
• Confidentiality .Proposed Rule 1.05, governing confidentiality, is significantly better than the current rule. It eliminates the distinction between privileged and unprivileged information, which always has been confusing and not useful.
Further, the proposed rule has added important provisions that protect Texas lawyers. Proposed Rule 1.05 allows a lawyer to disclose confidential information to seek legal advice about complying with the rules. It makes clear that lawyers may disclose in order to protect themselves in a variety of situations, including defending against an allegation in any proceeding that concerns a lawyer's representation of a client. Under the current rule, a lawyer's ability to disclose is limited to court actions actually filed against the lawyer.
Some argue that a provision in Proposed Rule 1.05 that permits a lawyer to disclose confidential information that is generally known and easily accessible makes the proposed rule at odds with national standards. But the national standard found in the American Law Institute's Restatement of the Law Governing Lawyers permits disclosure of generally known and easily accessible information.
However, it is true that the ABA Model Rules of Professional Conduct do not include permission to disclose such information. When the Restatement and the model rules are at odds, deciding which to follow requires assessing the reasons underlying each approach.
If a lawyer reasonably concludes the information is generally known and easily accessible, the likelihood of harm to a client from disclosure is very low. Moreover, lawyers with doubts will not disclose such information. Will unscrupulous lawyers try to manipulate around this provision? Certainly, they always do. But a reasonable disciplinary regime does not control all lawyer behavior because a few bad actors will misbehave. Conscientious lawyers should not have to worry that, because they acquired generally known, readily accessible information during the course of representing a client, they could be disciplined if they use it.
• Conflicts of interest. Here, too, the proposed rules are a step up. Consider current Rule 1.06, which creates the disciplinary standards for client conflicts. The present rule has two flaws.
First, it does not follow the model rule. This is a problem because of the prevalence of multi-jurisdictional practice. As the ABA website shows, most states follow the ABA rule, just as Proposed Rule 1.06 does. Bringing the Texas rule in line with the model rule will help most Texas lawyers, who will have to consider the conflicts rules in another jurisdiction at some point in their careers. It also helps those who practice in federal courts, where judges look to national standards instead of following in lockstep the Texas Disciplinary Rules.
The second problem with current Rule 1.06 is found in its imputation provision. Current Rule 1.06(f) creates strict liability for every lawyer in a firm who represents a client that another lawyer in the firm cannot represent. A lawyer can be disciplined under the current rule even if the lawyer did not know about the prohibition.
Proposed Rule 1.06(e) only would discipline a lawyer who knows or should have known that a conflict prohibited another lawyer in the firm from taking on the representation. The proposed rule defines the "should have known" standard to require that a reasonable lawyer would have attempted to ascertain information about the matter in question. All this improves 1.06 — it does not punish honest mistakes, but encourages lawyers to ascertain information.
2. Most of the current rules saw few changes. For many rules the only significant change was to add or change the scienter standard. These changes protect attorneys from discipline for honest mistakes, making discipline possible only if the lawyer possessed a certain level of knowledge.
For example, Rule 3.04 was changed only to add a scienter standard and to make minor grammatical improvements. Rule 4.02 was changed only to improve the syntax. Similar minor adjustments were made to the following rules: 1.01-1.02, 1.16, 2.01-2.02, 3.01-3.02, 3.04-3.06, 3.08-3.10, 4.01-4.04, 5.04-5.07, and all of the advertising rules.
3. Diverse lawyers drafted the proposed rules. They came from a wide variety of types of practice, regions of Texas and ethnic groups. Broad representation meant drafters — men and women — considered and debated the rules from every angle in an effort to produce the best set of rules possible. Many, including me, had not previously served on a Bar committee.
Are the results perfect? I am sure they are not. Some group will go back to the drawing board in a few years as the law develops and as the legal profession learns more. Indeed, last year the ABA appointed a new committee to review its model rules, particularly with a view toward international practice.
But the proposed rules are in the best shape that these serious and skilled lawyers from all over the state could make them. Please don't be persuaded to vote against the proposed rules because some lawyers find alleged flaws in them. To the extent these criticisms had merit, the Texas Supreme Court responded by changing the proposed rules in light of these criticisms.
The proposed rules are a considerable improvement over the current rules and better protect lawyers and clients than the current rules.
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