Does the State Bar even care about us?

I sat through three hours of CLE yesterday listening to the pros and cons of the State Bar's proposed changes to the Texas disciplinary rules.

First I listened to Amon Burton, Charles Herring and Jim McCormack tell me what was wrong with the proposed amendments. Well, to be honest, what was wrong with a small handful of them.

According to the State Bar, there will be no material changes to the rules as a result of the amendments. Mr. McCormack then asked the question that every lawyer in Texas should be asking: If you're not going to make material changes, why make the changes?

Just stop and think about that a bit. Let it sink in. So either the State Bar is proposing change for the sake of change or they're just plain lying about the effect of the changes.

As a rule of thumb, we make changes to address problems we encounter. If we're always late in the mornings we wake up earlier. If we think we weigh too much, we make changes in our diet.

In the context of the proposed changes, Mr. Burton wants to know what problem are these proposed changes meant to address. He also wants to know what goals the drafters of the proposed amendments had in mind. Finally he wants to know how much it's going to cost Texas lawyers to comply with the proposed changes.

Mr. Burton estimated that the 88,000 or so attorneys in Texas would each spend an average of 4.33 additional hours making sure they were in compliance with the new rules. He then estimated an average(?) billing rate of $262/hour for a total cost of $99,832.480. I'm not certain where he came up with his estimates, but I'm sure most of my colleagues on the defense bar would love to get a piece of that $262 an hour. It kind of puts into perspective how much counties car about providing quality representation for indigent defendants when the going rate in the Harris County area is anywhere from $50 to $100 an hour for appointed cases.

Then I listened to the State Bar's propaganda piece CLE and my head began to spin as I tried to keep up with the ball as it moved from cup to cup. First you had the State Bar's presenters tell us not to worry that the proposed changes differed from the ABA model rules. No one uses the ABA rules, they insisted. Then later on they said the State Bar used the ABA model rules as a guide or jumping-off point when drafting the rules. Then they told claimed there were no difference between the proposed changes and the ABA model rules.

Oh, lest I forget, the CLE began with an introductory video featuring the State Bar president, Terry Tottenham. And wouldn't you know it, the first thing out of his mouth was that it had been 20 years since the rules had last been changed and that was just too damn long. So that's your main selling point?

One of the presenters told us that some of the rules differed from the ABA model rules because the State Bar wanted the specifics of the rule to be found in the rule itself instead of being hidden in the comments. Then they all spoke of how we needed to read the comments for guidance in how to follow the proposed amendments.

We were told that attorneys who opposed the changes in the conflicts rules were probably acting unethically in the way they practiced. We were told not to worry about the changes in the confidentiality rule because Texas was already less stringent than the ABA on what constituted privileged communication between an attorney and a client.

And we were told it's not a good idea to sleep with a client or condition representation on the willingness of a client to sleep with you. Well, yeah, and if you juggle sharp knives you're likely to cut yourself to shreds.

The presenters also spent a good deal of time telling us how we needed to change the rules so we could show the legislature and the people of Texas that we could govern our profession ourselves. They seemed more concerned with the sunset review of the State Bar in 2015 than with how the rules affected criminal defense attorneys.

Interestingly enough, during the course of the entire three hours there was no one mention of the rules affecting  flat fees or IOLTA accounts. Not a one. Both presentations seemed geared toward attorneys working in large firms who might actually run across situations in which an attorney, or the firm, might be conflicted out of representation.

I really don't care about how large firms run conflicts checks when a prospective client walks in the door. I represent (for the most part) folks who are charged with committing criminal acts; and since I don't assist the state in its efforts to infringe upon the citizenry's rights and liberties, I have very little concern about being conflicted out of a case.

The State Bar of Texas doesn't care about those of who defend those accused of breaking the law. Is the self-governance of the profession really our concern?