Thursday, January 13, 2011

The State Bar strikes back

Earlier today I received the following e-mail from Frederick Moss, a law professor at SMU and a member of the State Bar's ethics rules committee:

Mr. Kennedy: 
Let me correct one thing you said about the referendum on the changes to the ethics rules.  You said that the Bar is asking Texas Lawyers to vote all of the changes either up or down. That is incorrect.  The referendum ballot will bunch the changed rules into six separate votes, so if you oppose one or more rules, you can vote against them while you can vote for those you don't object to.
Second, you characterize the Bar president's claim that some of the criticism of the proposed rule changes are "misinformation" as calling the critics "liars."  This is not true (or fair).  The president is just saying that some of the information the critics are dispensing is wrong. He is not saying it is intentionally false. Many of the criticisms voiced are wrong, based, I believe, on a misunderstanding of the proposals and their compatibility with the current rules and the ABA Model Rules. "Misinformation" may be intended or unintended.
Thank you. 
Fred Moss 
Professor Emeritus, SMU Dedman School of Law,
Member of the SBOT ethics rules committee
PS, Could you please post this reply on your blog for me?  I tried to do so, but couldn’t figure out how to do an “open ID”.  Sorry.  I’m just not technologically adept.  Thank you. 

To Mr. Moss' first point, my original post was incorrect (it has since been corrected). Lawyers in Texas will be asked to approve six proposals encompassing a number of proposed rule changes. By bundling them together, the State Bar is using the "don't throw the baby out with the bathwater" argument. You might not like this proposed change, but look at the other ones in the proposal.

Sure, I think it's a really bad idea for a lawyer to sleep with a client. Nothing good can come of it. But while I may support that proposed change, I cannot support the proposals regulating advance fees or the changes to the rules regarding attorney-client privilege.

Rule 1.05. Confidentiality of Information
(a) "Confidential information" includes both "privileged information" and "unprivileged client information." "Privileged information" refers to the information of client protected by the lawyer client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates. "Unprivileged client information means.
(1) in the case of client or former client is all information relating to client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client from whatever source, whether acquired by the lawyer personally or through an agent, other than information that is or becomes generally known or is readily obtainable from sources generally available to the public; and
(2) in the case of prospective client, as described in Rule 1.17. is information furnished to the lawyer by that prospective client, either personally or through an agent or other representative authorized to act on the prospective client's behalf, in the course of seeking legal representation, other than information that:
(i) is or becomes generally known or is readily obtainable from sources generally available to the public; or 
(ii) is furnished under the circumstances described in Rule 1.17(d)(2).

The proposed changes to Rule 1.05 mean that what's confidential isn't necessarily confidential. Should this proposal be adopted, when a client sits down and asks you if what he's telling you is confidential, the best answer you can give him is "it depends." I would like someone to explain to me how this aids in our representation of clients accused of committing criminal acts. It's not as big a concern in a civil suit because everything comes out before trial thanks to our civil discovery rules. It's a big concern in criminal prosecutions.

As to Mr. Moss' second point, the State Bar is burning up the internet with e-mails from Bar officials telling us why the proposed changes are the equivalent of sliced bread. Every one of these e-mails attacks the voices that raise questions about the new rules. And while the State Bar is sparing no expense to entice lawyers across the state to vote for changes, nowhere on the State Bar's website is there any dissenting opinion.

For another perspective on the proposed changes see Texas Rules Commentary. You won't find the same type of open discussion on the State Bar's website and you certainly won't see it in any of the e-mails you receive begging you to vote for the changes and attacking anyone who opposes them (which are paid for by your annual dues).


Gianpaolo Macerola said...

The barrage of emails and commentary from Texas Bar officials makes my justice bone go "dang." Anytime a group has to continually reassure me to vote for their changes it gives me pause and almost always means the changes are not in my best interest.

Paul B. Kennedy said...

Thank you for your comment and I wholeheartedly agree. If the State Bar were being honest they would roll out the changes piece by piece. Expecting anyone to be able to plow through 60+ pages of proposed changes is absolutely absurd.