Texas Bar Rules Referendum

Normally, Texas Disciplinary Rules of Professional Conduct, which apply to members of the Texas Bar, are considered and adopted by the Texas Supreme Court. End of story. However, the Texas Supreme Court has issued a referendum to the members of the Texas Bar on two proposed rule changes. The referendum ends on December 20. Being out of the Texas Bar loop for awhile, I can only imagine that these rules generated much controversy and comment to make the court withdraw their previous approval of these rules in lieu of the referendum.

The first rule change is to TDR 1.04, which previously allowed for a "forwarding fee" to be paid to a lawyer who merely referred a client to another lawyer without doing any substantive work for that client.

If the rule change passes, fees may only be divided if the client agrees to the division and the division must either reflect the true allocation of work among the two lawyers or must be accompanied by joint responsibility for the representation. In the court's order issuing the referendum, the court noted that currently Texas is the only jurisdiction whose rules allow for the payment of a pure referral fee.

The second rule change concerns lawyer advertising and has many facets. The two changes that I found interesting were (1) an attorney may not advertise a previously won dollar judgment unless the ad also discloses how much the client actually pocketed after attorney's fees and costs and (2) attorneys may not use actors in ads. I remember seeing an ad for the local plaintiff's attorney in Lubbock, Texas on the back of the phone book (one phone book -- residential, business, and yellow) with a picture of a lovely, blonde family of four only to see the same lovely family pose in an ad in Houston for a completely different service. Disillusionment is hard.

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