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The latest effort to institute a disciplinary rule barring lawyers from having sex with clients was derailed Jan. 19 when the State Bar of Texas board of directors voted to table the proposal. The board tabled the proposed disciplinary rule — which must be approved by a vote of the membership — after limited discussion of its wording and merit. “I think it’s fair to say about the action of the board of directors that it takes no great ability to refuse to act,” says Texas Tech University School of Law Dean Frank Newton, who supports a rule banning sex with clients. “They ducked the issues. They started off by conceding it’s clearly a problem � it’s clearly a problem as far as the public is concerned — [but] they were unable to try to deal with it.” Houston’s Larry Doherty, another longtime advocate for a ban on sex with clients, says the Bar board members are acting like ostriches by tabling the most recent version of the rule. “Time’s up,” says Doherty, a partner in Doherty & Wagner. “The Bar is demonstrating what I have been saying all along about enforcing rules against lawyers. They are gutless. They don’t even have the integrity to pass a rule they know they have to enforce because it [the conduct] is rampant.” The board doesn’t have the power to enact a disciplinary rule. But it can put a referendum on the proposed rule to a vote of the Bar’s members. In June it looked like that might happen soon. That was when the State Bar of Texas Resolutions Committee passed a ban on lawyer-client sexual relations in the form of an amendment to the Texas Disciplinary Rules of Professional Conduct. The committee referred the proposed amendment to the Texas Disciplinary Rules of Professional Conduct Committee for fine-tuning. The Women in the Profession Committee brought the proposed rule to the Resolutions Committee, and chairwoman Ellen Elkins Grimes of Houston says she’s disappointed with the board’s action at its January meeting. She is hopeful it will be reconsidered at the board’s April meeting. “I think there is still hope and what I intend to do is call some of these people who were speaking against it to see if there was some language problem,” says Grimes, a sole practitioner. The Women in the Profession Committee proposal simply banned sexual relations with clients, but the proposal from the disciplinary rules committee is more detailed. It adds a provision that explicitly bans quid pro quo behavior. It also explicitly says a lawyer shall not commence a sexual relationship with a client or a client’s representative while the lawyer is representing the client on a matter, unless the individuals are married or previously engaged in a relationship. Robert Schuwerk, a professor at the University of Houston Law Center who heads the Bar’s disciplinary rules committee, says the committee tried to write a workable rule after considering the Resolutions Committee’s proposal. The committee looked at several recent disciplinary actions against lawyers or judges that allegedly involve sexual relations between lawyers and clients, he says. Schuwerk says he believes some lawyers have questions on a no-sex disciplinary rule because they fear disgruntled clients would use it as a “stock allegation.” But Schuwerk says he was surprised at the board’s action to table the proposed new disciplinary rule since the Resolutions Committee voted in favor of it. Board member Charles Schwartz, a partner in Vinson & Elkins in Houston, said during the meeting Jan. 19 that a no-sex-with-clients rule is out of step with the wishes of the membership. “I’m not interested in the State Bar of Texas becoming the sex police,” said Schwartz. And Manuel “Manny” Newburger of Austin, a shareholder in Barron & Newburger, suggested that the proposed rule would put lawyers at risk for being set up by clients, particularly when considering Texas ethics opinions 392 and 514, which frown upon lawyers recording telephone conversations with clients without their consent. Bar president Lynne Liberato says the tabling doesn’t mean the death of the proposal. She says she, board chairman Richard Miller and executive director Antonio Alvarado will make sure it gets reconsideration. “There’s no question in my mind we need to honor the resolution that was passed at the meeting this summer. We need to take action. And this wasn’t the end of it, but there wasn’t an urgency to it that the particular resolution needed to be pushed through,” she says. “Nobody thinks that it is appropriate for a lawyer to abuse his or her power position and have sex with a client. The problem is … it is hard to define it,” says Liberato, a partner in Haynes and Boone. Gary Reaves, a board member from El Paso, says he made the motion to table the proposed rule because he believes the wording needs to be revamped. But Reaves, a partner in Vinson & Reaves, says Miller on Jan. 24 appointed him to an ad hoc committee to report back to the board in April with a plan for developing a workable no-sex-with-clients rule. Reaves says the committee also includes Schwartz and board members Beverly Reeves, a partner in V&E in Austin, and Luther “Luke” Soules, a partner in Soules & Wallace in San Antonio. TRY AGAIN The Bar board, meanwhile, failed to approve a request from the Sexual Orientation and Gender Identification Issues Committee to modify the Bar’s policy manual to include a clause prohibiting employment discrimination on the basis of sexual orientation and gender identification. The committee was not asking for language in the policy manual prohibiting discrimination on the same basis for benefits. Houston lawyer Phyllis Frye, chairwoman of the committee, told the board it is important for employees of the State Bar to believe they will not face discrimination on the job. She says there are Bar employees who are either gay, lesbian, bisexual or transgender. But Claude Ducloux, of Austin’s Hill, Ducloux, Carnes & Clark, chairman of the board’s Policy Manual Committee, told the board the majority of his committee voted against recommending the change in the manual. Frye and Charles Spain Jr., past chairman of the sexual orientation committee, say they will bring the amendment to the board again. “The board was afraid of doing anything it didn’t absolutely need to do,” says Spain, a senior staff attorney at the 1st Court of Appeals in Houston. Meanwhile, it’s certain a trial lawyer from East Texas will be the Bar’s president in 2003 when the existence of the Bar goes on the line during its Sunset Review by the Texas Legislature. The two candidates for president-elect are Guy Harrison, a sole practitioner in Longview, and John Mercy, a partner in Mercy, Carter & Elliott of Texarkana. Both are former members of the board. The election is in April. The winner of the election will take office in June 2002.

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