To vote or not to vote is NOT the question

For those of you barred in Texas, you have probably seen a few emails about the proposed new state bar rules. If you haven’t had time to review the rules yet or vote, this blog is for you! The 2021 State Bar Rules that are up for a vote are changes to the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure. There are various rumors about what these rule changes entail. CILA wanted to investigate so that we could determine if the rules would have any impact on legal service providers working with unaccompanied migrant children.

The rules that will be changing, or added, include:

A 1.02(g) (adding Rule 1.16) Scope and Objectives of Representation; Clients with Diminished Capacity
B 1.05(c)(9) Confidentiality of Information – Exception to Permit Disclosure to Secure Legal Ethics Advice
C 1.05(c)(10) Confidentiality of Information – Exception to Permit Disclosure to Prevent Client Death by Suicide
D 6.05 Conflict of Interest Exceptions for Nonprofit and Limited Pro Bono Legal Services
E Part 7 Information About Legal Services (Lawyer Advertising and Solicitation)
F 8.03, 1.06, 9.01 Reporting Professional Misconduct and Reciprocal Discipline for Federal Court or Federal Agency Discipline
G 3.01, 3.02, 3.03 Assignment of Judges in Disciplinary Complaints and Related Provisions
H 13.04 Voluntary Appointment of Custodian Attorney for Cessation of Practice

Our work with immigrant children can often bring up issues of competency and capacity. Would Ballot Item A be important for us? Although it addresses capacity, it is intended for lawyers working with an existing client who begins showing signs of diminished capacity. In fact, the change to the rules was suggested by Texas probate lawyers. Generally, the new rule allows for an attorney to consult with someone like a family member or doctor if they felt that their client was going to be harmed due to diminished capacity. It is a permissive rule, not mandatory; however, the attorney must use the “reasonably believes” standard when it comes to determining diminished capacity and the extent of any confidential information revealed. We would like to emphasize for those working with unaccompanied children that this rule would not give an attorney permission to speak with the client’s parent or other individual simply because the attorney does not agree with their child client’s decision. An assessment of diminished capacity must be done before making that decision.

Ballot items B & C also address when it is appropriate to share confidential client information, and work to further clarify the existing rule. B explicitly states that attorneys can reveal confidential information when seeking legal counsel for ethical advice. C allows confidential information to be released if a client is at risk of suicide. Advocates working with unaccompanied children may find themselves in either of these situations based on the nature of our work.

CILA was particularly interested in reviewing Ballot item D as it concerns pro bono legal services. The new proposed rule 6.05 creates exceptions to the conflict of interest provisions for those lawyers providing limited pro bono legal services. The key word for this new rule is “limited.” It applies to pro bono interactions that are:

“(1) provided through a pro bono or assisted pro se program sponsored by a court, bar association, accredited law school, or nonprofit legal services program;
(2) short-term services such as legal advice or other brief assistance with pro se documents or transactions, provided either in person or by phone, hotline, internet, or video conferencing; and
(3) provided without any expectation of extended representation of the limited assistance client or of receiving any legal fees in that matter.”

This ballot item was proposed due to the number of practitioners who wanted to provide quick assistance to their fellow community members during one of the all-too-frequent natural disasters Texas experiences (i.e. Hurricanes Ike & Harvey). However, concerns over creating conflicts of interest with current or future clients, and the inability to run a conflicts check in a crisis situation, often led to lawyers being hesitant to volunteer their services. This rule would apply to attorneys that help to staff call-in legal aid lines and other phone banks that assist people in crisis.

For our work, this rule may come in to play when a legal service provider is coordinating pro bono efforts that are limited in nature, such as a pro se asylum workshop. This rule may help reduce a barrier to recruitment for this type of event. Generally, ballot item D would reduce barriers to pro bono recruitment.

Ballot item E revises the rules regarding lawyer advertising and promotion/solicitation. These rules are very important to private practitioners because advertising and marketing are key to working with their paying clients, but tend not to be contemplated often by those working at nonprofit legal service providers whose funding comes from other sources. The rule does explicitly state that communications from non-profits that educate and advertise pro or low bono services do not need to be submitted to the bar for approval. The rule previously referenced nonprofits as being exempt from these rules because it was assumed they were not advertising for pecuniary gain. For a more thorough analysis of the lawyer advertising rules, please see this Q&A from the Texas Bar.

The last rule CILA reviewed and determined to pertain to legal service providers working with migrant children was Ballot item F. This proposed rule would amend both the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure. It requires that practitioners self-report “’discipline by a federal court or federal agency,” but only such discipline that amounts to a public reprimand, suspension, or disbarment. “Warnings” or “admonishments” do not need to be reported. It is CILA’s understanding that one impetus behind the revision of this rule was for those attorneys that regularly practice in front of EOIR and a purported rise in EOIR disciplining practitioners, but not to the level of suspension, etc. The prior version of the rules did not specifically mention federal courts or agencies. As such, CILA views this clarification as helpful to practitioners.

As a self-regulating profession, it is important that lawyers participate in the process of crafting said regulations, so they represent all the diverse views among the legal profession. Therefore, CILA would encourage you to vote on these proposed changes to the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure. We have given you CILA’s perspective on the rules, above, but if you want more information, check out the Texas Bar’s webpage on the vote, which links to the full text (redlined and the new version), summaries and FAQs, and the electronic ballot.

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