In 2017, the Texas Legislature, as part of the State Bar Sunset Bill, enacted Subchapter E-1. “Committee on Disciplinary Rules and Referenda; Disciplinary Rules Proposal Process”, Tex. Gov’t Code Secs. 81.0871-.0894. This statute addresses many of the problems which impeded the success of prior referenda, the most recent being in 2011 when Texas attorneys voted 4 to 1 against proposed amendments to our disciplinary rules.
Starting January 1, 2018, the nine member committee, consisting of seven attorneys and two public members appointed by the President of the State Bar of Texas and the Texas Supreme Court, has worked to modernize the Disciplinary Rules and the Rules of Disciplinary Procedure (collectively the “Rules”). A review of the information published on the State Bar website under “Rules Vote” reveals how eight proposed amendments to the Rules were initiated and drafted as the committee (referred to as the CDRR) received input from Texas attorneys who submitted hundreds of public comments.
After approval of the proposed amendments by the CDRR and the Board of Directors, the Texas Supreme Court ordered the State Bar of Texas to conduct a referendum in order for Texas attorneys to vote on the eight proposed amendments, as required by Tex. Gov’t Code Sec. 81.08792(3). Voting starts February 2, 2021 and continues through March 4, 2021.
The call for Texas attorneys to participate in this referendum is loud and clear. Members of the CDRR have been giving, and will continue to give, presentations to local bar associations on the proposed amendments. The January 2021 edition of The Texas Bar Journal has numerous messages and articles about the proposed amendments, with more information to follow in February. The State Bar website provides extensive information under “Rules Vote”. There will be Zoom presentations “on the proposed disciplinary rule amendments (approved for MCLE ethics credit) featuring members of the CDRR, followed immediately by a live forum where attendees can ask questions or make comments regarding the proposed amendments.” On-demand viewing of these forums will be available on the State Bar website. Marc Gravely and Santos Vargas, SBOT District 10 Directors, lead the San Antonio Bar Association Subpoena January Newsletter with an article entitled “Exercise Your Right to Vote on Proposed Disciplinary Rules”.
Texas attorneys will repeatedly be reminded of the referendum and afforded the opportunity to review the proposed amendments and understand how they impact Texas attorneys. While none of the proposed amendments may immediately impact your law practice, a good approach when evaluating whether you vote for or against each proposed amendment may be to apply the questions that committee member Claude Ducloux focused upon from the perspective of a real practicing attorney with a busy general practice. Do I understand the rule? Does this proposed change make sense for the profession and the public? Does it unnecessarily complicate the law practice? Can I teach others what the rule means and how it applies?
Once you have worked through these questions, a final inquiry could be whether the CDRR met its goal of modernizing the rules based upon honesty, applicability, and consumer protection, as opposed to bureaucratic concerns or minutiae. Mr. Ducloux has written an article on the proposed amendments entitled “What They Are and What They Do” to be published in San Antonio Lawyer, January-February 2021 edition, which may assist you in this process. If you have questions, the State Bar website affords the opportunity to contact the committee members to pose questions and seek additional information.
Texas attorneys do not need me to remind them of the upcoming referendum. This writing is a brief summary of the steps which have been taken to ensure self-governance and to suggest ways to evaluate our options. Now it is up to each of us to participate in the process.