Buck Files to head the State Bar

Congratulations are in order for the new President-Elect of the State Bar of Texas Buck Files of Tyler. Mr. Files will be the first criminal defense attorney to lead the State Bar.

Mr. Files won the election by a mere 481 votes out of the 21,210 votes cast. The win is another victory for the criminal defense bar and solo practitioners across the state following the defeat of the proposed ethics rules amendments earlier this year.

It is a cliche, but in an election like this, every vote counts. Thank you to everyone that voted (and campaigned) for Mr. Files.

It's time to stand up again

Once again it's time for the criminal defense bar to work together to give the State Bar of Texas a message. Votes for the next president-elect of the State Bar can be cast online until 5pm on May 2, 2011. This time around we actually have a choice.

Buck Files is a criminal defense attorney from Tyler, Texas. If his name sounds familiar it's because of his monthly column "Federal Corner" in The Voice of the Defense, the magazine of the Texas Criminal Defense Lawyers Association.

Unlike the lawyers from the "white shoe firms," Buck Files knows and understands what we go through on a daily basis. He knows and understands the way things work in the criminal defense bar. He knows there is a disconnect between the Texas Supreme Court, the bar leadership and Texas attorneys.

Like my colleague, Mark Bennett, I have concerns about Mr. Files' position regarding the recent referendum on the ethics rules. I don't know what Mr. Files' position is on Justice William Jefferson's declaration that the Court isn't satisfied with the results of that referendum. I feel confident that Mr. Files will at least listen to the members of the bar before trying to ram something down our throats again with our dues money.

We made our voices heard earlier this year. Now it's time to do it again. Send (another) message to the State Bar. Vote for Buck Files for State Bar President-Elect.

Sticking it to the solos

State Representative Burt Solomons (R-Carrollton) has authored a bill (HB1072) that would exempt attorneys employed by the State of Texas from having to pay "membership" fees to the State Bar of Texas. The bill is being promoted as a cost saver for the state.

The bill has passed out of the Judiciary & Civil Jurisprudence Committee this past week.

According to the fiscal analysis, there are 1522 full-time attorneys employed by the State of Texas. Each of those attorneys pays annual dues of $235 to the State Bar for the privilege of being an attorney in the Lone Star State. The passage of the bill will result in the State Bar's losing $357,670 a year for the next five years (assuming that the number of attorneys employed by the state remains constant).

Since the State of Texas pays the annual dues for the attorneys it employs, the bill would save the state $357,670.

The Comptroller of Public Accounts, however, says there are 2,778 attorneys employed by the State so the actual loss to the State Bar would be $652,830 a year.

The problem is the State Bar is going to want to recover that money from someone. And who would that someone be? Every attorney in private practice - or working for local governmental entities. Since firms tend to pay the membership dues of the attorneys working for them, the people who will be hurt the most are solo practitioners who have no one else to pay their bills.

I'm taking my ball and going home

After a referendum in which the State Bar's proposed disciplinary rules changes were defeated by about an 4-1 margin across the board, those behind the proposed changes still don't get the message that Texas lawyers made abundantly clear over the past month.

Wallace B. Jefferson, the Chief Justice of the Texas Supreme Court is so put out that he issued the following statement:

The Court is grateful to the many lawyers who contributed their time and wisdom to proposing revisions to the Texas Disciplinary Rules of Professional Conduct. The current rules are outdated, and must be amended to account for changes in the practice and in the law that have occurred since the bar last adopted comprehensive revisions 21 years ago. We intend to ask the Bar’s Board of Directors to make prompt recommendations about a timeline for future proceedings relating to the rules. In the meantime, the Court will consider what action, if any, may be necessary to carry out its responsibility to maintain standards of professional conduct that protect our justice system and the people it serves.

Much like the intellectually bankrupt leaders of the State Bar, the Chief Justice is unable to give a cogent answer as to why the rules need to be changed. Same theme, second verse -- if you can't come up with a better reason than how long it's been since the rules were last changed, then you don't have a good reason. The Bill of Rights seems to have worked (more or less) pretty well and the first ten amendments were written some 220 years ago.

Here's a hint for you, Mr. Jefferson, if you want a rule prohibiting sex between lawyers and their clients -- put it out for adoption on its own. I guarantee that had that rule change been put to a vote on its own, it would have passed overwhelmingly.

As to Mr. Jefferson's wanting to protect "our justice system," might I remind him that the Supreme Court's primary duty is to determine who gets whose money. I'm sure that's important to insurance companies and municipalities, but it has very little consequence on our citizens who find themselves the subject of a criminal prosecution.

Finally, the leadership of the State Bar wastes no opportunity to tell us we need to preserve self-governance in the profession. Well, Mr. Tottenham, if the State Bar is our form of self-governance, why is the Chief Justice of the Texas Supreme Court saying the Court will do what it wants to do, regardless of how we feel about it?

State Bar proposals go down in flames

The results are in and the leadership of the State Bar is still trying to wipe the egg off their faces after suffering a humiliating defeat in their attempt to revise the ethics rules in Texas.

Of course State Bar President Terry Tottenham, ever gracious in defeat, intimated that the Supreme Court would revisit the issue in the future.

“Texas lawyers elected not to adopt these rules. We expect that this will not be the end of the Supreme Court’s interest in making revisions to these rules.” -- State Bar of Texas President Terry Tottenham.

Interesting how after the lawyers of Texas rebuked his attempt to ramrod the changes down their throats -- using their dues money as added insult -- Mr. Tottenham now says the Supreme Court was behind the revisions.

Mr. Tottenham, the emperor has no clothes. Your arrogance, and the arrogance of the rest of the leadership, demonstrates that you are unfit to run this organization. You spent our money to advance your agenda. You could offer no compelling reason for any lawyer in this state to support the proposed rule changes. You grouped them together as a way of trying to manipulate the vote.

Our ethics rules might not be perfect, but they have served us for the past 20 years. There is case law interpreting the rules and most attorneys in Texas have a basic understanding of what we should and should not do. Change for the sake of change is bad policy and exposes the moral bankruptcy in the leadership of the State Bar of Texas.

Today is your last chance to vote

Cindy Owens and Michael Villasana and their colleagues with the Municipal Justice Bar Association of Texas urge you to tell the State Bar you don't approve of their proposed changes to the disciplinary rules in Texas.

Ms. Owens is the current president of the MJBAT and Mr. Villasana is the past president of the organization.

The Municipal Justice Bar Association of Texas, is urging you to Vote 'NO' on the State Bar Referendum and will give you some reasons to do so. 

1. We are an association of attorneys who practice in Municipal Courts and Justice of the Peace Courts throughout the State of Texas and some members practice also in the area of Criminal Law; 
2. The Municipal Court practice and Criminal Law practice has historically lent  itself to Flat Fees in that middle and lower income clients need to budget for all their needs including Attorney Fees. Many hire attorneys based on the fees they will be charged and/or the reputation of the attorney to be hired. This will be next to impossible for the attorney to assist them under the new rules, where they would either have to come up with a significant retainer or the attorney will have to bill hours in the future and hope they could collect after the case is finished. 
3. Could it be that with the advent of Texas 'Tort Reform', the Civil Defense Bar is tired of being boxed into Flat Fees by Insurance Companies.

Today is your last opportunity to vote. It no longer takes a majority of the membership to adopt the proposed changes -- it only takes a majority of those casting votes. Don't allow the rule changes to take effect by your apathy.

When the best argument in favor of the changes is that the last change was 20 years ago -- there isn't much reason to vote for the proposed rule changes. The State Bar has used your dues money to launch this effort and they have used more of your dues money advocating the changes. The leadership of the State Bar doesn't care what the membership wants or thinks. It's time to let them know that we're tired of their arrogance and disdain for those of us who defend those who have no voice.

An appeal to the other side of the well

I'm addressing this post to my colleagues "across the well" who work as prosecutors in the State of Texas. The proposed changes to the disciplinary rules have absolutely no bearing on how y'all conduct business. But I know that many of y'all will one day leave the DA's office and hang out your own shingle. Some of y'all will come over to the side of the angels and practice criminal defense. Others will go into other areas of the law.

Once you've left the employ of the government, the disciplinary rules will become a reality. If y'all haven't voted because you don't see how the rules would have any effect on your job, please consider what you and your colleagues may do down the road.

If you  go into criminal defense, the assault on the flat fee is going to affect you. You will find that out the first time you take on a client who can't pay your fee in full - or the first time you file a motion to withdraw because a client has decided not to pay you.

If you go into the civil arena (be sure to watch your back, because you never know whose knife is there), the rules on conflicts are going to become your own personal living hell when you try to determine if you can take on a new client.

There aren't too many issues on which we can fight alongside each other. This, however, is one. If you haven't voted, or if there are others in your office who haven't voted yet, please take the time to do so. Your ability to make your voice heard will end at 5:00 p.m. on February 17.

Time's running out to vote on rule changes

At 5:00 p.m. on February 17, voting on the proposed changes to the Texas disciplinary rules will come to an end. I'm fairly certain that most of the folks who plan on voting have already done so -- but I'm sure there are a few stragglers out there who haven't taken the time to vote yet.

Mark Bennett and I have written extensively about the proposed changes, but here are some more voices you might not have heard:

Jon Malone --

1. "The rules are poorly drafted, not needed, and benefit  neither  lawyers , clients nor the citizens of the State of Texas, for whom these rules were ultimately designed to protect.

    2.    The  State  Bar officers are lobbying and using their positions of power to affect the outcome of
            the vote on these matters, - a clear conflict of interest;

    3.    The State Bar is using funds obtained by our membership fees to lobby on political issues-
            an inappropriate and offensive use of  public funds."

*****

Michael J. Whitten --

"These proposed amendments, in my view, will be expensive to implement and do not really address anything that is a problem. The proposals are a classic example of appointing a committee to address a 'problem' and the committee feeling compelled to come up with a solution to the 'problem,' without having any empirical data to evaluate the degree and extent of the perceived problem."

*****

H. Deloyd Bailey --

"While we may need some revisions in our current rules, I agree that overall this fix flies in the face of the sage advice, 'If if ain't broke don't fix it.'"

Time's running out. If you haven't already voted, please cast your NO vote now. Don't be apathetic. Don't wake up one morning and wonder what the hell happened to the disciplinary rules. This is our chance to make our voices heard.

Does the State Bar even care about us?

I sat through three hours of CLE yesterday listening to the pros and cons of the State Bar's proposed changes to the Texas disciplinary rules.

First I listened to Amon Burton, Charles Herring and Jim McCormack tell me what was wrong with the proposed amendments. Well, to be honest, what was wrong with a small handful of them.

According to the State Bar, there will be no material changes to the rules as a result of the amendments. Mr. McCormack then asked the question that every lawyer in Texas should be asking: If you're not going to make material changes, why make the changes?

Just stop and think about that a bit. Let it sink in. So either the State Bar is proposing change for the sake of change or they're just plain lying about the effect of the changes.

As a rule of thumb, we make changes to address problems we encounter. If we're always late in the mornings we wake up earlier. If we think we weigh too much, we make changes in our diet.

In the context of the proposed changes, Mr. Burton wants to know what problem are these proposed changes meant to address. He also wants to know what goals the drafters of the proposed amendments had in mind. Finally he wants to know how much it's going to cost Texas lawyers to comply with the proposed changes.

Mr. Burton estimated that the 88,000 or so attorneys in Texas would each spend an average of 4.33 additional hours making sure they were in compliance with the new rules. He then estimated an average(?) billing rate of $262/hour for a total cost of $99,832.480. I'm not certain where he came up with his estimates, but I'm sure most of my colleagues on the defense bar would love to get a piece of that $262 an hour. It kind of puts into perspective how much counties car about providing quality representation for indigent defendants when the going rate in the Harris County area is anywhere from $50 to $100 an hour for appointed cases.

Then I listened to the State Bar's propaganda piece CLE and my head began to spin as I tried to keep up with the ball as it moved from cup to cup. First you had the State Bar's presenters tell us not to worry that the proposed changes differed from the ABA model rules. No one uses the ABA rules, they insisted. Then later on they said the State Bar used the ABA model rules as a guide or jumping-off point when drafting the rules. Then they told claimed there were no difference between the proposed changes and the ABA model rules.

Oh, lest I forget, the CLE began with an introductory video featuring the State Bar president, Terry Tottenham. And wouldn't you know it, the first thing out of his mouth was that it had been 20 years since the rules had last been changed and that was just too damn long. So that's your main selling point?

One of the presenters told us that some of the rules differed from the ABA model rules because the State Bar wanted the specifics of the rule to be found in the rule itself instead of being hidden in the comments. Then they all spoke of how we needed to read the comments for guidance in how to follow the proposed amendments.

We were told that attorneys who opposed the changes in the conflicts rules were probably acting unethically in the way they practiced. We were told not to worry about the changes in the confidentiality rule because Texas was already less stringent than the ABA on what constituted privileged communication between an attorney and a client.

And we were told it's not a good idea to sleep with a client or condition representation on the willingness of a client to sleep with you. Well, yeah, and if you juggle sharp knives you're likely to cut yourself to shreds.

The presenters also spent a good deal of time telling us how we needed to change the rules so we could show the legislature and the people of Texas that we could govern our profession ourselves. They seemed more concerned with the sunset review of the State Bar in 2015 than with how the rules affected criminal defense attorneys.

Interestingly enough, during the course of the entire three hours there was no one mention of the rules affecting  flat fees or IOLTA accounts. Not a one. Both presentations seemed geared toward attorneys working in large firms who might actually run across situations in which an attorney, or the firm, might be conflicted out of representation.

I really don't care about how large firms run conflicts checks when a prospective client walks in the door. I represent (for the most part) folks who are charged with committing criminal acts; and since I don't assist the state in its efforts to infringe upon the citizenry's rights and liberties, I have very little concern about being conflicted out of a case.

The State Bar of Texas doesn't care about those of who defend those accused of breaking the law. Is the self-governance of the profession really our concern?

The opposition grows

The number of organizations coming out against the State Bar's proposed changes to the disciplinary rules continues to grow:

• Texas Criminal Defense Lawyers Association
• Harris County Criminal Defense Lawyers Association
• Galveston County Criminal Defense Lawyers Association
• Houston Trial Lawyers Association
• State Bar of Texas Council of the General Practice, Solos and Small Firms Section (Props A,B,D and E)

If you know of any other organizations that have announced their opposition to the State Bar's proposals, please let me know so that I can add them to the roll.

Political propaganda disguised as education?

Not to be outdone by those opposing the proposed changes to the disciplinary rules, the State Bar of Texas has decided to bring out of retirement, a free two-hour CLE about the proposed changes. I'm sure that our dues money isn't being used for this propaganda push otherwise passing for continuing legal education.

According to the State Bar:

During this presentation on the proposed amendments to the Texas Disciplinary Rules of Professional Conduct, the panelists will touch on the process of amending the rules but will focus mainly on four of the proposed new rules – Rules 1.00, 1.13, 1.14. 1.17 – and the proposed amendments to four conflict-of-interest rules – Rules 1.06 through 1.09 – that have sparked considerable debate during the amendment process. This webcast is intended to help lawyers understand the current content of proposed rules that will go to a referendum between January 18 and February 17. Take advantage of this opportunity to learn about these proposed rules before exercising your right to vote.

With a panel made up of a former chair of the State Bar's committee on the disciplinary rules, the current chair of the Supreme Court's task force on the disciplinary rules and the Supreme Court's rules attorney, I'm sure you will hear a balanced assessment of the proposed changes.

Your state bar dues money in action

While killing time at the Galveston County Law Library, I came across this pamphlet on the proposed ethics rule changes. The pamphlet was produced using our dues money and toes the company line on the "need" for reforming the rules. There is no evidence in the pamphlet of any opposition to the proposed changes.

It's telling when the first thing the State Bar president mentions is that it's been 20 years since the ethics rules were last reviewed and changed.

In the January 2011 issue of the Texas Bar Journal Mr. Tottenham notes that "the practice of law has changed significantly over the past 20 years...For example, we did not use technology to the degree we do now." That's all well and good, but what on earth does technology have to do with trying to abolish the flat fee?

Mr. Tottenham, change for the sake of change is not only not a good idea, it's not good policy. If you can't come up with a better argument for changing the rules then I can think of no good reason the rules should be changed.

UT Law offers free CLE on proposed rule changes

For those of you who want more information on the State Bar's proposed disciplinary rules changes, the University of Texas is offering a free one-hour online CLE that addresses issues and problems with the proposed changes.

The CLE is free through January 29, 2011 and again from February 2-18, 2011. There will be a $35 fee for the CLE between January 30 and February 1.

The discussion is hosted by Amon Burton, Charles Herring, Jr. and Jim McCormack who have all spoken out against the proposals.

For more information, click here.