Thursday, January 13, 2011

State Bar says those opposed to rules changes are liars

Every year I receive a dues notice from the State Bar of Texas. In exchange for my annual dues payment I receive the Texas Bar Journal - which contains little of interest outside the discipline notices. The State Bar is pretty much run by the big "white shoe" law firms in Houston, Dallas and Austin.

Even though most attorneys licensed by the State of Texas are either solos or work for firms of less than five attorneys, the State Bar does not speak for them. And, when it comes to criminal attorneys, we are at the bottom of the food chain. The State Bar would like to pretend we don't exist. Whenever changes are proposed to the disciplinary rules, the State Bar politely ignores the input of the Texas Criminal Defense Lawyers Association.

Such is the case once again as the State Bar has decided it's time to update the disciplinary rules - apparently for no better reason than they haven't been updated it a while.

Most of us in the criminal defense bar charge flat fees to represent clients charged with criminal offenses. To our colleagues in BigLaw, the flat fee is anathema. BigLaw doesn't understand that ordinary folk don't have the resources of Big Insurance Company. BigLaw also doesn't seem to understand that, unlike a civil case, if a criminal case goes bad, the client ends up in jail - and folks in jail aren't too keen on paying that remaining balance on the bill.

We are being asked to vote on a referendum to accept or reject, in whole, proposed changes to the disciplinary rules in the State of Texas. Some of the proposed changes are good - but some are very troubling to criminal defense attorneys.

Chief among these is proposed Rule Number 1.15. This rule lays out the obligations of an attorney who is holding property belonging to a client or another party. Section 1.15(d) reads as follows:

[a] lawyer shall deposit unearned fees and advanced expenses into client trust account, to be withdrawn by the lawyer only as fees are earned or expenses are incurred.

What's the big deal, you ask? How do you define an unearned fee? If you're handling a divorce or a civil matter and you charge your client a retainer, you deposit that retainer in a trust account and withdraw the money as it's earned per the hourly rate you and your client agreed to. How do you determine what's earned in a criminal case?

We don't bill by the hour. We bill for our service. A prospective client either agrees to pay our fee or they find someone else who will charge less. I charge a flat fee for DWI defense. While I have a good idea of what needs to be done on the case, I don't know going in how much time I'm going to have to spend working on it. How much discovery is there going to be? Witness interviews? Pretrial motions? It's not practical on a criminal case to call your client up and tell them they need to bring in more money because the case has gotten more complicated than you first estimated. Most of our clients don't have the money.

We are also bound by our ethical obligations to provide a vigorous defense. But what if a client can't ante up halfway through a case? It would put both the attorney and the client in untenable positions.The basis of a criminal representation is the relationship between the attorney and the client -- let financial issues get in the middle of that relationship and something's got to break.

There are many criminal defense attorneys throughout the state who are opposed to these rule changes because of the impact they may have on the defense bar. Unfortunately the leadership of the State Bar (who is supposed to represent its members) has taken to smearing the names of those who are opposed to the proposed changes.

There is a lot of misinformation being disseminated. This is a self-governance issue. Nobody knows better what is right and wrong with the profession and the justice system than we who practice in it. As a profession, we have the right and the duty to improve and regulate our system.

The above excerpt is from an e-mail signed by the current president of the State Bar, the immediate past president, the president-elect, the chair of the board, the current president of the Texas Young Lawyers Association along with the immediate past president and the president-elect.

So there you go. If you're opposed to the changes you're a liar.

Some representation, wouldn't you say?

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