Comment on Disciplinary Rules' Proposed Amendments

The Texas Supreme Court proposed amendments to the Texas Disciplinary Rules of Professional Conduct that are broad and extensive:

• 5 newly defined terms that apply to the entire body of rules
• 40 revised rules
• 4 new rules — five if you count Rule 1.00, the new terminology rule
• 11 rules that have not been amended except through the terminology changes added by Rule 1.00.

Not since January 1, 1990 have the Disciplinary Rules undergone this level of revision. Significantly, after the 1990 revisions to the Rules, the number of disciplinary sanctions against Texas lawyers experienced a substantial increase approximately a year after the rules changed. And, the number of sanctions did not return to normal even nine years later. ("Lady or the Tiger? Opening the Door to Lawyer Discipline Standards," Bruce A. Campbell, Fla. Coastal L.J. Vol. 1, p.232-36 (1999). If there was one lesson to be learned from the last time the Rules were substantively amended, it is that it can take a decade or more for lawyers to conform their conduct to substantial changes in the Rules.

You may want to read my comments in Texas Lawyer on proposed changes to rules governing:

• Informed Consent
• Affiliated Lawyers and Entities
• Prospective Clients

Staying Within the Lines: Proposed Rule Changes Could Blur the Lines for Attorneys

The proposed changes to the Texas Disciplinary Rules of Professional Conduct could make it difficult for attorneys to practice "within the lines."

One example of blurred boundaries is the definition of an "affiliated lawyer" in Rule 1.00(c)(iii).

A lawyer is “affiliated” with a firm if either the lawyer or the lawyer’s professional entity… has any other relationship with that firm, regardless of the title given to it, that provides the lawyer with access to the confidences of the firm’s clients that is comparable to that typically afforded to lawyers in category (i)…

Category (i) is defined as "a shareholder, partner, member, associate, or employee of that firm."

How will the definition of affiliated lawyers create conflicts problems? Consider the following scenario.

A law firm brings in a contract lawyer to work on one particular matter but either 1) fails to limit the contract lawyer's access to other clients' matters on the firm's computer or 2) fails to restrict the contract lawyer from hearing conversations related to other clients by firm lawyers within the office. The firm has probably provided "access to the confidences of the firm’s clients," which is a condition for the contract lawyer to become an affiliated lawyer. By inadvertently making the contract lawyer an "affiliated the lawyer," the firm now faces the potential of unforeseen conflicts of interest based on the past representations of the contract lawyer.

This is just one possible outcome from the proposed changes to the Disciplinary Rules. I will be posting more discussions about what lies ahead with the proposed amendments to the Disciplinary Rules.

Photo and processing by Bruce A. Campbell.