State Bar CDRR Update

Wednesday, May 4, 2022

The State Bar’s Committee on Disciplinary Rules and Referenda (CDRR) met by Zoom earlier today to discuss several pending changes to the Texas Disciplinary Rules of Professional Conduct (TDRPC), including Rule 3.09 (Special Responsibilities of a Prosecutor). (For background on their discussions of this rule, see our first April 2022 Interim Update and the Executive Director’s Report in our March-April 2022 issue of The Texas Prosecutor.)

The committee eventually postponed further consideration of proposed changes to TDRPC Rule 3.09 until its next meeting, but we wanted you to know more about what happened and why.

May 4 Meeting

The CDRR committee met today by Zoom to consider several matters (agenda available HERE.) The committee quickly agreed to refer to the State Bar Board of Directors the proposed changes to two other disciplinary rules, then the committee members engaged in a vigorous discussion of the proposed changes to Rule 3.09. The nine members of the committee (list HERE) appeared to divide into three main camps: (1) approve the proposal and send it to the Bar’s board for further consideration; (2) postpone the matter to give the committee time to fine-tune the proposal based on the public comments it received; and (3) indefinitely table the issue due to a lack of consensus.

Interestingly, it was the original proponent of the changes–Professor Vincent Johnson of St. Mary’s Law School–who proposed indefinitely tabling the proposal (to avoid the controversy surrounding it from adversely impacting the other two rule proposals referred by the committee to the Bar board). Others who supported dropping the matter included Karen Nicholson (one of two public, non-lawyer members of the committee)–who expressed no opinion on the proposal but objected to referring any matter that was not unanimous–and Rick Hagen (the lone criminal law practitioner on the committee), who expressed concerns that the proposed changes might be unworkable in practice and could potentially overstep the Bar’s authority.

The strongest voice in support of approving the proposed Rule 3.09 changes and sending them on to the Bar board for further consideration was Tim Belton (the other public, non-lawyer member of the committee, who hails from Bellaire and had not previously participated in any public discussions of the rule). Most of the other committee members who engaged in the discussion fell somewhere in between those two poles, with the end result being a vote to leave the matter pending (over Mr. Belton’s objection).

During the interim before the next meeting, the committee members should have time to review and consider additional commentary they have received since the public hearing on April 6, including concerns from four Texas prosecutors who operate conviction integrity units (available for viewing as the last entry under this “Meeting Materials” PDF), as well as a new proposal submitted a few days ago by Potter County Attorney Scott Brumley, as chair of TDCAA’s Rule 3.09 Committee, that offers revised language for the CDRR to consider (and which is available to read as part of this “Meeting Supplement”). None of the committee members mentioned that latter submission during the meeting, so it is likely that they did not have time to review it beforehand, but now they (and you) will.

Next steps

The committee will reconvene on June 1 and decide what (if anything) to do in regard to Rule 3.09. According to the minutes of the April 6 meeting, if the CDRR does not refer the proposal to the Bar board by June 4, it will have to extend the public comment period or start the whole process over in accordance with Bar rules for such proposals.

To review the agenda, proposed rule, and written comments from the May 4 meeting, click here. That link should also eventually include archived video of the hour-long meeting, for those of you interested in watching it for yourselves. The committee members appear to be open to further input, so if you wish to engage with them on this issue, visit the general CDRR webpage for more information or contact Shannon Edmonds, who is handling this issue while Rob Kepple is out of the office.