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Proposed Amendments to the Texas Disciplinary Rules

By: Amy Agnew

Recently, the Committee on Disciplinary Rules and Referenda published proposed changes to Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct.  Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct concerns a lawyer’s competent and diligent representation of his/her client.  The new proposed changes add language from the American Bar Association’s Model Rules 1.1 (competence) and 1.3 (diligence). 

Also, the Texas Supreme Court recently amended paragraph 8 in the comment section of Rule 1.01 on February 26, 2019, and added language regarding an attorney’s technologic competence. 

The proposed changes delve further into defining what competent and diligent representation by a lawyer should be, including the requirements for competent representation being listed in the rule instead of just being discussed in the comment section to Rule 1.01.  Additionally, these additions to Rule 1.01 could pave the way for further grounds for grievances. 

The current Texas Disciplinary Rules of Professional Conduct 1.01 states,

            (a) A lawyer shall not accept or continue employment in a legal matter which the lawyer    knows or should know is beyond the lawyer’s competence, unless:

                        (1) another lawyer who is competent to handle the matter is, with the prior                                     informed consent of the client, associated in the matter; or

                        (2)  the advice or assistance of the lawyer is reasonably required in an emergency                           and the lawyer limits the advice and assistance to that which is reasonably                                             necessary in the circumstances. 

            (b) In representing a client, a lawyer shall not: 

                        (1) neglect a legal matter entrusted to the lawyer; or

                        (2) frequently fail to carry out completely the obligations that the lawyer owns to                           a client or clients. 

            (c) As used in this Rule, “neglect” signifies inattentiveness involving a conscious   disregard for the responsibilities owed to a client or clients.

The new proposed changes to the rule add two new sections incorporating additional language from the model ABA rules.  The changes define “competent representation” and also add that a lawyer shall act with reasonable diligence.

The proposed Rule 1.01 states,  

            (a) a lawyer shall provide competent representation to a client.  Competent             representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

            (b) a lawyer shall act with reasonable diligence and promptness in representing a client. 

            (c) A lawyer shall not accept or continue employment in a legal matter which the lawyer    knows or should know is beyond the lawyer’s competence, unless:

                        (1) another lawyer who is competent to handle the matter is, with the prior                                     informed consent of the client, associated in the matter; or

                        (2)  the advice or assistance of the lawyer is reasonably required in an emergency                           and the lawyer limits the advice and assistance to that which is reasonably                                             necessary in the circumstances. 

            (d) In representing a client, a lawyer shall not: 

                        (1) neglect a legal matter entrusted to the lawyer; or

                        (2) frequently fail to carry out completely the obligations that the lawyer owns to                           a client or clients. 

            (e) As used in this Rule, “neglect” signifies inattentiveness involving a conscious   disregard for the responsibilities owed to a client or clients.

The proposed changes to Rule 1.01 are significant, and the addition of the requirements of competent representation and also diligent representation are clearer in the proposed changes. A public hearing on the proposed rule changes is scheduled for April 18, 2019, in Austin at the Texas Law Center.

Also, with the Texas Supreme Court’s recent order amending the comment regarding attorney competence, a lawyer should strive to remain proficient and competent in the practice of law, including the use of technology.  The new comment to Rule 1.01 states: 

          Maintaining competence

8.  Because of the vital role of lawyers in the legal process, each lawyer should strive to     become and remain proficient in the practice of law, including the benefits and risks associated with relevant technology.  To maintain the requisite knowledge and skill of a competent practitioner, a lawyer should engage in continuing study and education.   If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances.  Isolated instances of faulty conduct or decision should be identified for purposes of additional study or instruction.

The additional language regarding technology in comment 8 follows the American Bar Association’s paragraph 8 in the comment section to the model rule 1.1.  With this amendment, attorneys now need to be competent regarding technology, in addition to the required competence to practice law.


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