Texas Bar Sunset

Texas Bar Sunset

 

REFORM PROPOSALS TO THE SUNSET BILLS FOR THE BOARD OF LAW EXAMINERS (BLE) -&- THE STATE BAR OF TEXAS
[Editor's note: Although the 2017 Sunset bills were ultimately passed into law with a few of the reform proposals below at least partially included in them, most of the proposals below remain unimplemented or at least inadequately implemented.]

 

1) BOARD OF LAW EXAMINERS (BLE):

Regarding: HB 2103 / SB 303: Relating to the continuation and functions of the Board of Law Examiners:

Our lone reform proposal regarding HB 2103 / SB 303 pertains to:

The Board's Rule 13, §1 of the Rules Governing Admission to the Bar of Texas adopted by the Supreme Court of Texas, which allows out-of-state attorneys to join the Texas Bar without even passing the Texas bar exam:

https://ble.texas.gov/rule13

Interestingly enough, states such as California, Florida, Arizona and Nevada (etc.) apparently still do not let members of the Texas Bar waive-in to become active bar members out there in the absence of passing a bar exam out there, too.   This has gone on for decades despite the comparatively hospitable openness of Texas attorney membership.   A reciprocity requirement regarding bar exam-waivers is therefore warranted, please.   The rationales for this proposal are more elaborately included at the following link to the Sunset Commission’s public comments section:

https://www.sunset.texas.gov/reviews-and-reports/agencies/comments/1336

specifically:

https://www.sunset.texas.gov/public/uploads/Board%20of%20Law%20Examiners%20Sunset%20submission%20Rich%20Robins%20Esq%20_0.pdf

(It may be necessary to copy and paste that entire u.r.l. link into a browser since e-mails tend to "break" it.).

We therefore suggest that something resembling section (d), below, be added to that rule, please:

Rule 13, § 1 Exemption from the Bar Examination for Applicants Who Are Authorized to Practice Law in Another State
        An Applicant who is authorized to practice law in another state must meet the requirements imposed on any other Applicant under these Rules, except that the Applicant is exempt from the requirement of successfully completing the Texas Bar Examination if the Applicant:
     (a) has been actively and substantially engaged in the lawful practice of law as the Applicant’s principal business or occupation for at least five of the last seven years immediately preceding the filing of the Application;
     (b) has a J.D. degree from an approved law school; and
     (c) has not failed the Texas Bar Examination; and
     (d) satisfactorily passed the bar examination in a state (or the District of Columbia) which reciprocally allows Texas Bar examination passers to obtain a license to practice in state courts in that state without having to pass that state’s own bar examination, too
.   


Meanwhile:
--

2) STATE BAR OF TEXAS:

Regarding: HB 2102/ SB 302: Relating to the continuation and functions of the State Bar of Texas:

       As a preface, it’s worth realizing that Texas can't easily afford to keep jailing folks who take the law into their own hands, or supporting folks who fail as entrepreneurs basically because they could not afford a potentially helpful lawyer as a consequence of the Texas Bar's cost-increasing conflicts of interest.    When more Texans can actually afford a lawyer, as would increasingly be the case if the Texas Bar gets significantly reformed or even replaced, violence and incarcerations in Texas are likely to decline, and economic malaise is as well.    Texas already has enough debts as it is:

http://www.usdebtclock.org/state-debt-clocks/state-of-texas-debt-clock.html

We therefore OPPOSE some pending reform proposals in HB 2102 & SB 302. They are as follows, and are followed by specific amendment proposals where applicable.

*** We oppose abolishing Texas attorneys' (self-rule) rights to approve any changes to professional disciplinary rules and also membership dues through referendums. To paraphrase current Texas Bar presidential candidate Joe Longley, HB 2102's §3 & §6 as well as SB 302's §3 & §6 currently nullify attorneys' dues-referendum-related rights. We ask that you please delete those two sections, renumbering all remaining sections accordingly. Amendments to either §3 & §6 are therefore moot. By the way, here is 2016 salary data for the Texas Bar. Can you believe the lavishness? Meanwhile...

*** We also oppose eliminating democratic protections against rules changes which tentatively appear in proposed changes to §4 of both HB 2102 and SB 302.

***We oppose giving grievance filers the ability to wield a Bar authority against their estranged attorneys which can wage the power of a judicially unrestrained ("fishing expedition") investigative subpoena upon their estranged lawyers. We therefore urge caution regarding HB 2102's still imprecise §8's §81.080 and also §14(c)(2) and §14(d)(1), as well as SB 302's §8's §81.080 and also §14(c) and §14(d)(1).

***We oppose compelling attorney members to endure forced grievance mediation procedures, which  presumably do not offer the accused attorney compensation for lost time, or the option to decline such an opportunity altogether and instead require that the disgruntled client pursues litigation which (unlike pursuing a Bar grievance) is actually subject to an oath of factual truthfulness and sanctions for frivolous and / or fraudulent filings as well as for perjury. Fortunately HB 2102 and SB 302 do not presently seem to compel participation in mediation, instead of its mere availability.

***We oppose requiring the Texas Bar to substantially explain to unsuccessful grievance filers why their complaints were dismissed, thereby enabling them to refile them potentially more successfully (for added harassment value against their estranged lawyers). Fortunately HB 2102 and SB 302 do not presently seem to compel such harassment-facilitation.

 

Additionally we PROPOSE the following reforms for the Texas Bar:

•Requiring HB 2102's §81.0876(b) and SB 302's §81.0876(b) to include electronic mail (aka "e-mail") to Bar members as an additional means of advising them of proposed disciplinary rules changes. E-mails should be sent to all members in addition to the Bar's traditional publication in merely the Texas Bar Journal and the Texas Register. The Bar Journal is seldom reliably delivered to members, after all and the Texas Register is not always thoroughly read by members, either. Additionally we propose...

•Requiring that grievance complaints against attorneys be filed in sworn & verified form, as states such as Alaska require.

•Removing immunity protection for grievance filers found to have lied during the disciplinary proceedings, thereby having Texas follow the lead of states reportedly such as Vermont and New York. Presently Rule 15.09 of the Texas Rules of Disciplinary Procedure still states the following:

“Rule 15.09 Immunity: No lawsuit may be instituted against any Complainant or witness predicated upon the filing of a Grievance or participation in the attorney disciplinary and disability system.  All members of the Commission, the Chief Disciplinary Counsel (including Special Assistant Disciplinary Counsel appointed by the Commission and attorneys employed on a contract basis by the Chief Disciplinary Counsel), all members of Committees, all members of the Board of Disciplinary Appeals, all members of the District Disability Committees, all officers and Directors of the State Bar, and the staff members of the aforementioned entities are immune from suit for any conduct in the course of their official duties. The immunity is absolute and unqualified and extends to all actions at law or in equity.”

Meanwhile, Texas Disciplinary Rule of Professional Conduct Rule 4.04 presently states the following, and should be amended to finally allow for the expeditious pursuit of civil and / or criminal recourse in the event of the filing of a grievance deemed to contain fraud:

Rule 4.04 Respect for Rights of Third Persons
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer shall not present, participate in presenting, or threaten to
present:
(1) criminal or disciplinary charges solely to gain an advantage in a civil matter; or
(2) civil, criminal or disciplinary charges against a complainant, a witness, or a potential witness in a bar disciplinary proceeding solely to prevent participation by the complainant, witness or potential witness therein.

•Removing Texas from the list of fewer than ten U.S. states that imposes a mere "preponderance of the evidence" standard for attorney grievance convictions. Texas should utilize a "clear and convincing" standard, instead, like dozens of other U.S. states already do including California, Arizona, Colorado, Oklahoma, Kansas, Louisiana, Alaska, South Carolina, Georgia and Virginia (for example).

•Letting attorney/client relations be controlled merely by independently existing laws of contract, Deceptive Trade Practices Acts (DTPA) and fiduciary duties which can be enforced in ordinary civil court, pursuant to existing rules of civil procedure that actually require that filings be truthful.    Through contract law, attorneys and their clients could opt-in to specific behavioral codes of attorney conduct IF they so desire.   The existing code of attorney conduct in Texas often runs contrary to traditional legal principles, though, and for reasons that are often difficult if not impossible to justify (other than the Texas Bar’s desire to add to its $13 million annual Continuing Legal Education / CLE sales revenues).   The Texas Bar should focus its energies on pursuing license suspension or revocation based upon attorneys’ violations of criminal statutes and / or a clear trend of numerous successful (and relevant) civil legal actions achieved against certain attorneys for their behavior as attorneys.  

•Spinning-off the Texas Bar's trade association activities into a separate, private entity into which dues-payer membership is merely optional.  The Texas Bar in its current “unified” form takes in over $20 million annually in dues payments. Annual dues is considerably lower in several other states where attorneys are not forced to subsidize services that they do not want such as (unhelpful and typically unread) monthly publications, (relatively dormant) focus groups and (often technically nonfunctional) online forums. Virginia maintains both a mandatory membership disciplinary authority as well as a voluntary membership state bar.  Texas should finally start doing so.  

•Allowing what remains of a mandatory membership Texas Bar to authorize Continuing Legal Education (CLE) providers, but NOT to continue competing against them.   The Texas Bar presently takes in over $13 million annually in CLE sales. The status quo presently maintains a perverse incentive to keep the disciplinary system a mystery from which CLE can "set one free" for an approximately $100 an hour fee.  Many state attorney licensing authorities do not sell CLE of their own, reportedly including those of Kansas, Arkansas and Tennessee. Other state licensing authorities sell relatively little CLE such as California ($690,000 annually) Virginia ($100,000 annually) and Colorado (probably less than $30,000 annually).

•No longer selling advertising on the TexasBar.com website if it is going to continue to have individual attorney disciplinary information on it. That website presently brings in hundreds of thousands of dollars per year in advertising revenue.   A conflict of interest consequently exists to "spice up" the pages' contents with "dirt" on attorney members, even as the same Texas Bar doles out the discipline from which it then gets to profit through the sale of publicity on its own website. HB 2102's §10(b)(5) & §14(f) as well as SB 302's §10(b)(5) & §14(f) seem particularly relevant.

•No longer charging for advertising reviews (thereby resembling bars in states such as Virginia which charge nothing for ad reviews, and where annual dues is also lower than in Texas).   The present ad review system at the Texas Bar is counterproductively plagued with convenient nit-picking and predatory fundraising tendencies.  

•Imposing term limits on Texas Bar disciplinary officials, to reduce callousness towards the private sector’s well-being, “thuggery” and even corruption. Such terms should NOT be renewable merely as a result of having briefly worked in a different capacity for the Texas Bar prior to resuming (or attempting to resume) with Texas Bar disciplinary activities.   Meanwhile these proposed term limits are to have retroactive effect, such that if a 5 year term limit is imposed, it is to retroactively apply (as of a future date that is to be determined) to all Texas Bar disciplinary officials who have already served in a disciplinary capacity at the Texas Bar for 5 years.   When possible, the same term limits concept applies to closely affiliated entities existing under the Texas Bar’s umbrella structure, such as the Board of Disciplinary Appeals.  Furthermore, the concept of working in a disciplinary capacity at the Texas Bar is to be interpreted broadly instead of narrowly.   Meanwhile, we propose removing rule Texas Rule of Disciplinary Procedure 15.09’s criminal and civil immunity protection that is still enjoyed by Texas Bar disciplinary officials even when found to have engaged improperly in reckless or malicious conduct against the relevant accused attorney.

       The rationales for the abovementioned regarding the Texas Bar are more elaborately present at the following link to our public comment maintained with the Sunset Commission:

https://www.sunset.texas.gov/public/uploads/Robins_R_TexasBarSunset_5-16-16_1.pdf

(which is otherwise linked near the top at http://www.TexasBarSunset.com , as well as at the Sunset Commission's public comments section at: https://www.sunset.texas.gov/reviews-and-reports/agencies/state-bar-texas ).

As a supplement, here is 2016 salary data for the Texas Bar. Can you believe the lavishness?

 

 

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