Proposed Amendments to the Texas Disciplinary Rules of Professional Conduct
Brief Background and Explanation
By Kennon L. Peterson
On October 20, 2009, the Supreme Court of Texas issued the Order below (Misc. Docket No. 09-9175), proposing amendments to the Texas Disciplinary Rules of Professional Conduct. The amendments are the product of extensive debate and careful consideration by the Court, Task Force on the Texas Disciplinary Rules of Professional Conduct, and State Bar of Texas Committee on the Texas Disciplinary Rules of Professional Conduct.
Several goals influenced the content of the amended rules. One of the primary goals was to enhance protection of the public. Another goal was to provide better guidance for lawyers dealing with discrete types of clients, such as prospective clients and clients with diminished capacity, and lawyers engaging in certain professional activities, such as law-reform activities and business transactions with clients. Additional goals were to reflect current practices and to clarify disciplinary standards overall in order to improve lawyers’ compliance with these standards and thereby protect the integrity of the legal profession.
The amended rules are redlined against the current rules in a document that is posted on the websites of the Court and State Bar of Texas.
To facilitate comprehension of the redlined document and the Order below, here is a brief overview of some of the most significant proposed amendments:
v There are five new rules — Rules 1.00, 1.13, 1.14, 1.17, and 6.03.
● Rule 1.00 contains definitions of terms that appear in the rules. There are new terms: “affiliated,” “confirmed in writing,” “informed consent,” “personally represents,” “reasonably should know” (replacing “should know”), “represents,” “writing,” and “written.” In addition, substantive revisions have been made to the following terms: “firm,” “fitness,” “fraud,” “fraudulent,” “law firm,” “partner,” “substantial,” “substantially” and “tribunal.”
● Rule 1.13 addresses prohibited sexual relations between a lawyer and client.
● Rule 1.14 addresses a lawyer’s obligations and options when the lawyer represents a client with diminished capacity. Current Rule 1.02(g), which touches on the same subject matter, has been deleted.
● Rule 1.17 addresses a lawyer’s obligations relating to a prospective client.
● Rule 6.03 addresses a lawyer’s obligations when the lawyer participates in law-reform activities that may affect the interests of the lawyer’s client.
v Four rules have been renumbered — Rules 1.13, 1.14, 1.15, and 5.08.
● Rule 1.13 has been renumbered as Rule 6.02.
● Rule 1.14 has been renumbered as Rule 1.15.
● Rule 1.15 has been renumbered as Rule 1.16.
● Rule 5.08 has been renumbered as Rule 5.07, to fill a blank space.
v Several rules contain new or revised scienter standards.
● As indicated above, the scienter standard “should know” has been changed to “reasonably should know” throughout the amended rules.
● The scienter standards governing use and disclosure of a client’s confidential information have been revised. See Rule 1.05(b)(1)-(2) and (c)(3).
● There are new and revised scienter standards relating to a lawyer’s conflicts of interest. See Rules 1.08(a)(1) and (e)(2), 1.09(a)(1) and (c)(1), and 1.10(c).
● Likewise, there are new and revised scienter standards relating to an affiliated lawyer’s imputed conflicts of interest. See Rules 1.06(d), 1.08(i), 1.09(a)(2) and (c)(2), 1.10(b) and (d), and 1.11(c).
● For more examples of new and revised scienter standards, see Rules 1.12(b), 1.15(d)(2) and (e)(2), 3.03(b) and (d)-(e), 3.07(a), 3.08(a)-(b), and 5.03(b).
v There are enhanced requirements for lawyer-client communications. See, for example, Rules 1.03(a)(1)-(2), 1.04(c) and (d)(4), 1.07(b)(2), 1.08(a)(2)-(3) and (f), and 1.15(d)(1).
v The standard governing a lawyer’s fee has changed. The fee standard in Rule 1.04(a) has changed from “unconscionable” to “clearly excessive.” But the factors that may be considered in determining the reasonableness of a fee have not changed.
v Confidential information is defined differently, and Rule 1.05 is rewritten accordingly. “Confidential information” is no longer defined in reference to “privileged information” and “unprivileged client information.” There is also a clear differentiation between confidential information of a client or former client versus that of a prospective client. Rule 1.05 has been rewritten to reflect, among other things, the definitional changes and the modified scienter standards addressed above.
v Standards governing conflicts of interest are clarified in Rules 1.06 through 1.11.
● Rule 1.06, for example, is structured around what a lawyer may not do, even with a client’s informed consent, and what the lawyer may do in other cases. In addition, the “substantially related matter” test has been removed.
● Rule 1.07 has been rewritten to address a lawyer’s obligations relating to the representation of two or more clients in a matter.
● Rule 1.08 has been revised significantly to define more clearly the bounds of a lawyer’s prohibited transactions. Of note, subparagraph (g)(2) contains new disciplinary standards for arbitration agreements between lawyers and clients.
● Rule 1.09 has been revised significantly to improve clarity, explicitly limit the use and disclosure of information relating to the representation of a former client, and define “substantially related” matters for purposes of this rule.
● Rule 1.10 has a new title and contains, among other things, new and revised definitions of terms, as well as revised standards for a lawyer serving as a public officer or employee. The amended rule also clarifies when restrictions relate specifically to personal representation, as opposed to representation.
● Rule 1.11 has a new title and has been revised to reflect the revised definition of “tribunal” (which impacts the definition of “adjudicatory official”), specifically address third-party neutrals, provide and define the new term “court lawyer,” and clarify when restrictions relate to personal representation.
v Revised standards govern lawyers who represent organizations. Rule 1.12 has been restructured and revised substantively to clarify a lawyer’s obligations when representing an organization. For example, the amended rule clarifies the lawyer’s duty to protect the organization’s best legal interests, modifies the standard for initiating reasonable remedial measures, and addresses the limited situations in which the lawyer may disclose the organization’s confidential information or jointly represent the organization and the organization’s constituent or constituents.
v There are also revised standards governing the lawyer’s safekeeping of property. Renumbered Rule 1.15 has been restructured and revised substantively to clarify the obligations of a lawyer who holds the property of others. For example, the amended rule addresses when the lawyer may deposit the lawyer’s own funds in a client trust account and when the lawyer may withdraw fees and expenses from a client trust account, differentiates between the lawyer’s duties to a client versus a third person, and clarifies what the lawyer must do when there is a dispute regarding the property.
v Aspects of a lawyer’s duty of candor toward the tribunal have changed. In addition to being restructured to improve clarity, Rule 3.03 has been revised substantively to modify a lawyer’s duty of candor toward the tribunal. For example, the amended rule refines the lawyer’s duty relating to criminal or fraudulent conduct and expands the lawyer’s duty relating to the offer or use of false, material evidence. With an exception for criminal matters, the rule also permits the lawyer to refuse to offer or use evidence that the lawyer reasonably believes, but does not know, is false.
v There are new and revised standards governing trial publicity. Rule 3.07 has undergone significant revisions. Paragraphs (b) and (c), which contain examples of what may or may not violate paragraph (a), have been deleted. The content of those paragraphs will be in comments instead. There is a new paragraph (b), which addresses permissible conduct, and a new paragraph (c), which addresses imputation.
v Managerial and supervisory lawyers are subject to new obligations. Rules 5.01 and 5.03 have been revised to impose duties on lawyers with managerial or supervisory authority, rather than on partners who do not always have this authority. In addition, the amended rules clarify that a lawyer is not expected to take reasonable remedial action beyond the scope of the lawyer’s authority. Rule 5.03 has also been restructured to better guide lawyers who are managing or supervising nonlawyers.
v A lawyer has a clear duty to represent a person upon being appointed to do so. Rule 6.01 has been revised to make clear that when a tribunal appoints a lawyer to represent a person, the lawyer is obligated to represent the person until the representation is terminated in accordance with Rule 1.16(c).
v A lawyer must report certain findings of guilt and deferred-adjudication orders. Under new paragraph (f) of Rule 8.03, a lawyer is obligated to report to the Office of the Chief Disciplinary Counsel a finding of guilt or an order deferring adjudication by any court for the commission of an Intentional or Serious Crime, as defined by the Texas Rules of Disciplinary Procedure. Regardless of whether the lawyer appeals the finding or order, the lawyer must report within thirty days of the finding or order.
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This article contains a summary of the proposed amendments to the Texas Disciplinary Rules of Professional Conduct that the Court’s Rules Attorney deemed most significant. Reasonable minds may differ on the amendments she has deemed significant, as well as her characterization of the amendments. This article does not represent the views or opinions of the Court or any of its members. The Court encourages each member of the State Bar of Texas to analyze the Order containing the proposed amendments and the redlined comparison document that is posted on the websites of the Court and State Bar.