The Defense Rests: Let our voices be heard

Tuesday, January 18, 2011

Let our voices be heard

Fellow counsel,

It's time to cast your vote on the proposed changes to the Texas disciplinary rules. You may vote online at the State Bar's website until 5pm on February 17, 2011. This is your opportunity to let the powers that be at the State Bar know you're upset with the manner in which the criminal defense bar is treated in this state. Let the State Bar know you are tired of the rules governing how we conduct our business being decided by BigLaw attorneys in Houston, Dallas and Austin. Remember that the people proposing these rules don't work in the trenches with those that no one else dares represent.

The State Bar has mobilized a campaign to force these changes down out throats and they're using our dues money to do it. Just take a look at the State Bar's website. Are there any dissenting opinions posted? No. The only information provided on their website is propaganda in favor of the proposed changes. To be fair there is an article from the bar journal that does include the reasons some attorneys plan to vote no to the changes -- but I harbor serious doubts that these responses were from a true cross-section of Texas attorneys.

The State Bar has taken our money (that we are required to hand over to them) and used it to pay for e-mail blasts that take aim at anyone who dares to challenge their orthodoxy. Anyone who undertakes such a campaign makes me want to know what they're not telling us -- or what they're afraid to admit.

Currently Rule 1.04(a) says that an attorney may not charge an unconscionable fee:

(a) A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable.

According to the commentary on the current rules,

A lawyer in good conscience should not charge or collect more than a reasonable fee, although he may charge less or no fee at all. The determination of the reasonableness of a fee, or of the range of reasonableness, can be a difficult question, and a standard of reasonableness is too vague and uncertain to be an appropriate standard in a disciplinary action. For this reason, paragraph (a) adopts, for disciplinary purposes only, a clearer standard: the lawyer is subject to discipline for an illegal fee or an unconscionable fee. Paragraph (a) defines an unconscionable fee in terms of the reasonableness of the fee but in a way to eliminate factual disputes as to the fees reasonableness. The Rules unconscionable standard, however, does not preclude use of the reasonableness standard of paragraph (b) in other settings.

Under the proposed changes, Rule 1.04(a) would read:

A lawyer shall not enter into an arrangement for, charge,or collect an illegal or clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a reasonable lawyer would be left with a firm belief or conviction that the fee is in excess of a reasonable fee.

The commentary for the proposed change states:

A lawyer in good conscience should not charge or collect more than a reasonable fee, although a lawyer may charge less or no fee at all. Thus, paragraph (a) subjects a lawyer to discipline when a reasonable lawyer would be left with a firm belief or conviction that the fee is in excess of a reasonable fee. But this paragraph’s “clearly excessive” standard does not preclude use of the “reasonableness” standard of paragraph (b) in other settings.

So, here's the rub. In the commentary to the existing rules we learn that it can be difficult to determine what is or isn't a reasonable fee and that such a standard would be "too vague" to use in disciplinary procedures, but the new rule talks about fees that are "clearly excessive" and the commentary indicates that a reasonableness standard should be applied to determine if the fee arrangement violates the rules.

That, my friends, is a tremendous change and a scary one at that. Who determines what's reasonable? Will it be other criminal defense attorneys in the area? Will it be other criminal defense attorneys who handle a particular type of criminal case on a routine basis? Will it be attorneys from BigLaw who have no idea of what goes down in the criminal courts or what is involved in defending a person accused of committing a crime?

In the course of less than six years, how did we get to a point where a reasonableness standard isn't too vague anymore?

The State Bar attempts to answer concerns from criminal defense attorneys that the new rules will change the way attorneys have to handle flat fee arrangements (or if such arrangements are even allowed). According to the State Bar

The proposed rule does not change this law (and it could not) and puts criminal defense lawyers in no worse or better position than the current rule.

Well, if that's the case, why change the rule at all?

I urge everyone to vote no to the proposed changes and I urge you to express your concerns to attorneys who practice outside the criminal courts.

For more commentary, please see: