Comment-On-Disciplinary-Rules-Proposed-Amendments.20091228

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www.texaslawyer.comDecember 28, 2009 vol. 25 • No. 39 LegaL ethics[ ]C D C r ’ p D Dby BRUCE A. CAMPBELL breadth and depth of the rule amendments would n Oct. 20, the Texas take more space than is Supreme Court issued available here. Therefore, broad and extensive pro- I have included only a few posed amendments to the changes that likely will Texas Disciplinary Rules affect many lawyers.of Professional Conduct. Until the amendments, The court noted that it there was no disciplinary will accept public com- rule or definition in the ments about the changes disciplinar y rules that Ountil Dec. 31. required that a client’s Under the amendments there are consent be “informed con-five newly defined terms that apply sent.” Nor did the rules to the entire body of rules. There require that consent be are 40 revised rules. There are four evidenced in writing. new rules — five if you count Rule Rule 1.00(k) provides 1.00, the new terminology rule. And that “informed consent” there are 11 rules that have not been denotes the agreement amended except through the terminol- by a person to a proposed ogy changes added by Rule 1.00. course of conduct after Not since Jan. 1, 1990, have the the lawyer has adequately explained While it is expected that the issue of disciplinary rules undergone this level the material risks of and reasonably informed consent will be measured of revision. About a year after the 1990 available alternatives to the proposed based on ...

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• Publié par: Uctou
• Nombre de lectures: 78
• Langue: English

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[ ] LegaLsctEih C ommenton D isCiplinary r ules ’ p roposeD a menDments by BRUCE A. CAMPBELL breadth and depth of the r uleamendments would n Oct. 20, the Texas take more space than is Supreme Court issued available here. Therefore, broad and extensive pro- I have included only a few posed amendments to the changes that likely will Texas Disciplinary Rules af fectmany lawyers. of Professional Conduct. Until the amendments, The court noted that it there was no disciplinary will accept public com- r uleor definition in the ments about the changes disciplinar yr ulesthat until Dec. 31. required that a client’s Under the amendments there are consent be “informed con- sent.” Nor did the rules  ofr ules.There require that consent be evidenced in writing. Rule 1.00(k) provides t f t r t l 1 n a a d e s s o s o r o c i a e . h t o r f i v e f a u o e g u v m 0 s a a k v e l e r e n e b s w n y r t 0 e c i I r e n e N e c n U f s i f , s a t n h 4 n e c t t o v p n i i n a r c o i n e t 0 d i a t n h f r l a o c e a t o f h O u s i h r l h i e n d r n a i t m n l o w l a r n n o t i e e e d e sn o y e e s i r e a l n r e o s , i m c s n g n v r t t y v e 1 g t i n e n n a . e a e i t h y y u i x n t s e c 1 e s l d e g s e r i h A h n d — c c e r y s e s e i a a e e w e e d r r e a . b a r u d i r a f i e t p u o o J o l n d i f l s d t n e i b t l e a m r a c a e n r u n u s d e v l s ls s o o t n t r t e e e n e u y s e a m e t h m . n d , l u d a n t m l d o r T d t t e o d y i n b t d i i 1 e o y f h e s , r , n u b t d e e s m . e r u e a x d a r o c y e e s d a e y t g e i 1 a t r f n l T r , ot r s o o s h o o 9 R t h m g ud i h n t c u f a h t r g 9 r u l t a o o s e f u t a e i l y l h 0 a v d t n r n s c a e s h , t i e t s e w e e e r s t o s t r e t r w u h y 1 u t i o h t o c h . u n u t y l b a a e n e i r h n a l a 0 t n o h e r e r s i r n p g n e t 0 t t u v s e t r s l e s o . m e i . e i a a s b l m t r i n 1 w y s R f A n p e e n c c t a t 9 s m o b e u t p u v n e i h a a h o r 9 e l u r l t e a b a l d y n e y e 0 e n n e r o r - l l - l l t s t i h ee k s e n e t t l i s f a y u y ti b i w n o s il t g n l a i a b n n t n e i d v o a e f uw f l ri e a l c l s w t t a k e a te d f ee f b e p f c o y e t r i a t n h n m g i a a c t n n s h a y e e l x y y r s p e e i e a p s r r r t o s e . s f - “fiaf hawit if firm retiehtwaeyehl .”edatli erwylaAffa“si”detaili ntity: orrhetawlr’ye rp s sefonoisela that “informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has adequately explained While it is expected that the issue of the material risks of and reasonably informed consent will be measured available alternatives to the proposed based on the information available to course of conduct. a lawyer at the time of the request for The term “informed consent” is consent, the amendments do not state used 30 times in the proposed amend- when the timing of the adequacy of the ments. My prediction about the defini- explanation is to be evaluated. er. tion of “informed consent” is that it will spawn many years of litigation before Affiliated Lawyers and Entities it is fully defined. The question of what The amendments add a new defini- constitutes an adequate explanation tion of when lawyers and entities are

Reprinted with permission from the December 28, 2009 edition ofTexas Lawyer. © 2009 ALM Media Properties, LLC. All rights reserved. FuRthER dupLiCatiOn withOut pERMissiOn is pROhiBitEd. FOR infORMatiOn, CaLL 214-744-7723 OR COntaCt [e-mail].

• (i) is a shareholder, partner, member, associate or employee of that firm; • (ii) 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); or • (iii) is held out as being in category (i) or (ii). A lawyer is “affiliated” with another lawyer if the lawyers or their professional entities have any of the relationships described in categories (i)-(iii) above. The term “affiliated” is used 25 times in the proposed r uleamendments, and the definition is referenced through- out all of the proposed rule amendments. Who is “affiliated” is significant for conflicts analysis because it potentially expands the scope of persons for whom conflicts analysis will be applied. For instance, under the amendments, poorly crafted marketing materials could hold out a lawyer or firm in such a way that the lawyer or firm is determined to be affiliated. I predict that conflicts checks for many firms will become more difficult than they are under the present rules.

Prospective Clients Most lawyers have been at social gatherings where they were asked what they thought of some fact pattern. During the holiday season, the likelihood increases that par ty-goerswill ask lawyers their opinions on a variety of legal questions. Thus, consider proposed new Rule 1.17, which states, in part: (a) A person who in good faith discusses with a lawyer the possibility of forming an attorney-client relationship with respect to a matter is a prospective client. (d) When a lawyer has received confidential information during a discussion with a prospective client, representa- tion of a client with interests materially adverse to those of the prospective client in the same or a substantially related matter is permissible if: (1) the prospective client has provided informed con- sent, confirmed in writing to the representation; or (2) the lawyer conditioned the discussion with the pro- spective client on the prospective client’s informed consent that no information disclosed during the discussion would be confidential or prohibit the lawyer from representing a dif ferentclient in the matter.

Under Rule 1.17(a) the focus of the inquiry regarding who is a prospective client is on whether the nonlawyer has, in good faith, discussed the possibility of forming an attorney-client relationship with the lawyer. Under Rule 1.17(a), the issue will turn on the nonlawyer’s perspective. The lawyer may be able to protect himself from being conflicted out of adverse representations by obtaining informed consent to be adverse to the nonclient before the confidential information is conveyed or by conditioning the discussion on treatment of the information as noncon- fidential. Nevertheless, because informed consent applies to both exemptions under Rule 1.17(d) and must be in writing, at a minimum the lawyer could be at a disadvantage and may not be able to stop an aggressive nonclient from conflicting him out of adverse representations. It is somewhat comical to imagine a lawyer at a party with his computer and printer handing out notices in an attempt to give informed consent to nonlawyers. Some may suggest that under Comment 2 to Rule 1.05 of the existing disciplinar yr ules,there can be a duty of confidentiality to prospective clients. But there is a difference. A lawyer can be sanctioned for a violation of a disciplinary rule, but under the Preamble to the Disciplinary Rules, a lawyer cannot be disciplined for a violation of a comment to the rules. All lawyers should take the opportunity to comment on the proposed amendments to the disciplinary rules. Perhaps more time should be allowed to comment on them. Never theless,if the amendments go into effect as drafted, Texas lawyers will hopefully adjust their conduct to meet the standards more quickly than they did last time.

Bruce A. Campbell is a shareholder in Campbell & Chadwick in Dallas. He defends lawyers in tort and disciplinary actions and regularly is retained as an expert witness to opine on standard-of- care and lawyer-ethics issues.

Reprinted with permission from the December 28, 2009 edition ofTexas Lawyer. © 2009 ALM Media Properties, LLC. All rights reserved. FuRthER dupLiCatiOn withOut pERMissiOn is pROhiBitEd. FOR infORMatiOn, CaLL 214-744-7723 OR COntaCt [e-mail].