My Report to TCDLA

When Waxahachie attorney Ron Bunch and I were elected to the State Bar Board of Directors in 2004, we became the only TCDLA members to be serving on the board. What we found was appalling: The Executive Director of the State Bar of Texas had never worked with—or even met—the Executive Directors of TCDLA or TDCAA. We also found that there was no one from criminal law—criminal court judge, prosecutor, or criminal defense lawyer—serving on the Commission on Lawyer Discipline, the MCLE committee, the CLE committee, or the Texas Board of Legal Specialization.

We made it known to our new Executive Director that we wanted a change, and almost immediately, he reached out to TCDLA and TDCAA. It took a little longer, but Bar Presidents listened to us and we began to see folks from criminal law receiving appointments to committees and boards.

I never set out to be State Bar President. I knew that the last criminal defense lawyer who had served in that capacity had begun his term in 1977. I didn’t believe that it was possible for a criminal defense lawyer to get elected, and besides, I didn’t want to be out of my office as much as it would take to do the job.

Then the unexpected happened: A candidate for President-Elect in 2011 had to drop out at the last moment and I was asked to take his place. This was an opportunity for someone from criminal law to lead the Bar and I agreed to step in for him. I called on many of you to help me. You responded and I got elected. Without your help, I know that I would never have happened.

After eight months in office I decided it was time to report to you about what I have been doing.

“Working Together to Strengthen Our Legal Profession”

This has been my theme.

Later this decade, the State Bar of Texas is going to have 100,000 members. Many of these lawyers are going to be significantly in debt and will have a temptation to view the practice of law as a business rather than as a profession.

This concerns me and I have been talking and writing about professionalism, ethics, and the Lawyer’s Creed. The State Bar has a Professionalism Committee, and I have charged the Chair and the members of that committee to serve as a task force and to make suggestions as to how we can encourage the trait of professionalism in our members in the years to come.

Reaching Out to ALL Lawyers

Over the past 20 months, I have tried to be what I said that I would be during my campaign: A Voice for ALL Lawyers. I began by meeting with the Executive Directors of the Metropolitan Bars and with every specialty bar that had an executive director: TCDLA, TDCAA, TTLA, and TADC. The message was always the same: “The State Bar cares about you. What can we do to help you?” Every one of these meetings was productive. Ask Joseph Martinez and he will tell you that the relationship between the State Bar and TCDLA is the best that it has ever been. Rob Kepple, Executive Director of TDCAA, tells me that prosecutors now feel that they really are a part of the State Bar.

Traveling Around the State

Having worked in courthouses for all my years as a lawyer, I decided to walk the local courthouse every time that I was in a town or city for whatever reason. By the end of January, I had been to 22 courthouses all over Texas and had visited with more than 200 judges, either in their chambers or while they were on their benches. I have also attended a judicial conference, spoke to the attendees, and visited their 8 hospitality suites. Many judges have indicated that they were pleased that I have not forgotten the judiciary. I have also visited with elected prosecutors, civil lawyers, and other criminal defense lawyers.

I have spoken at bar association meetings, law schools, and CLE events and my message has always been well received. I will continue to do this for the remaining four months of my term. After that, I intend to be a liaison between the State Bar and criminal defense lawyers, prosecutors, and criminal court judges.

Making Committee Appointments from All Segments of the Bar

I worked on the hundreds of appointments to committees that each President-Elect has to be concerned with. Each of these appointments is for three years and most appointees receive a second term; therefore, a President-Elect can influence the composition of a committee for 6 years. One member of the Bar staff mentioned to me that he didn’t know that there had been so few from criminal law appointed until he began working with me. In the past, many Bar Presidents simply had little contact with criminal defense lawyers. Also, many criminal defense lawyers did not show any interest in being appointed to these committees.

My favorite appointment was of former TCDLA President Mike Heiskell to serve as a Trustee for the Texas Bar Foundation. Although this organization is 48 years old and has 8,321 members, no criminal court judge or prosecutor or criminal defense lawyer had ever previously been appointed as trustee or elected to an office of the Foundation.

Talking About TLAP and the Ethics Helpline

The Texas Lawyers Assistance Program has volunteers who are available 24/7 to listen to and help lawyers with alcohol and substance abuse issues. Kelly Pace and Lance Larison are TCDLA members who are active in this program.

The Ethics Helpline has two full-time lawyers from the office of the Chief Disciplinary Counsel who are available to help anyone with an ethics issue. They are receiving some 5,000 calls a year and try (hard) to answer each of these calls within 24 hours. Their advice may save you from a grievance. Call 1-800-555-1212 and ask for the Ethics Helpline.

Talking About Our State Bar Board of Directors

The State Bar Board of Directors represents the interests of over 92,000 lawyers from a myriad of practice areas. We have 30 elected directors; 6 representatives of the small, medium, and large sections; 4 minority directors appointed by the President; the elected officers of the Bar; the past chair of the board (ex efficio); and 6 lay members appointed by the governor. Additionally, we have 5 liaisons from the courts, the judicial section, and the out-of-state lawyers.

The Board is appropriately diverse as to race, gender, area of practice, size of firm, geographic location of practice, age, and sexual preference. There is a myth that the Board is made up of big-city lawyers. In fact, there are lawyers from these small towns all over Texas: Nacogdoches, Weslaco, Plano, College Station, Beaumont, Midland, Rockport, Forney, Cypress, Laredo, Clifton, Hillsboro, Richmond, Jacksonville, Los Fresnos, Boerne, Granbury, McAllen, and Temple.

Talking About Our Governance Model

One of my concerns has been that our lawyers understand how important it is that we continue to govern ourselves. With more than 92,000 lawyers now licensed to practice in Texas, it is a given that the legislature is going to continue to require oversight of our profession. We can provide this ourselves or we can cede this oversight to something of the legislature’s choosing. Not a great idea.

In 1999, the State Bar had 324 employees taking care of 65,000 lawyers. Today, we have 268 employees taking care of 92,212 lawyers—and there has been no dues increase in more than 20 years. Can you imagine anything created by the legislature being able to put up those numbers?

Many, though, are still complaining about the infamous Referendum of 2011 that the Supreme Court of Texas required the State Bar to conduct—and I understand this. But there is a lesson here: Because we govern ourselves, we had the opportunity to vote and to reject it. That’s a good thing.

Talking About Transparency

It is not just the end result that matters. The process is important. Executive Director Michelle Hunter is always available to answer questions about the process.

At every board meeting, every member of the board has the opportunity to address any issue and to raise any question that he or she deems appropriate.

I Have Been Passing the Word

1. The State Bar Is Concerned About the Lawyers of Texas

The officers, directors, and staff of the State Bar realize that we are in hard economic times; therefore, we are all concerned about giving our members every economic benefit that we can:

  • We have a member discount program that is remarkable. A member of the State Bar can save on everything from Brooks Brother’s clothing to electronics to FedEx to Las Vegas shows to Godiva chocolates and wine. Look under benefits at www.texasbar.com.
  • We have Casemaker, a free legal research tool that is available to our lawyers. You can search the case law and the statutes from all 50 states, plus the Texas Administrative Code, Texas Constitution, and Attorney General opinions. More than 12,000 Texas lawyers already use this free program.
  • The State Bar’s Lawyer Referral Information Services offers attorneys the opportunity to be included in a statewide referral database. Participating attorneys also receive discounts on services offered by TexasBarCLE.
  • The Law Practice Management Program is available both to established lawyers and to those newer lawyers who are hanging out a shingle. It helps you assess your practice, discover “how to” brochures, and take advantage of seminars and a resource library focused solely on practice management.
  • The State Bar continues to seek lower cost insurance for its members. We are surveying solo and small firm practitioners to evaluate interest in participating in a group plan to try to get lower cost health insurance. The results of the survey will be used to determine if there is enough interest to be attractive to group carriers. Your voice is important—if you receive the survey, please complete it.
  • TexasBarCLE is a national leader in continuing legal education, providing live courses from the basics to advanced, webcasts, an online library, and online classroom. Executive Director Michelle Hunter and I gave TexasBarCLE Director Pat Nester his marching orders: “Put on the best CLE that you can and be competitive in your pricing.” Last year, some 27,000 Texas lawyers took advantage of our programs. Interestingly, the average TexasBarCLE customer attends 3.4 programs per year. From a returning customer point of view, this would indicate high satisfaction with our product. I also set aside $50,000 in scholarship money for lawyers who could not afford the full cost of TexasBarCLE seminars. We also offer our perspective lawyers free online CLE after they take the bar examination and until they are sworn in as lawyers.

2. The State Bar Is Concerned About the People of Texas

These are five examples:

  • The Oyez, Oyez, Oh Yay program was developed to assist our middle and high school civics teachers present to their students the 24 cases that they must know for the new Texas Essential Knowledge and Skills standard assessment tests in U.S. government and history. Our Law Related Education department produced 24 CDs , each with a vignette about one of these cases. The program includes such well-known cases as: Marbury v. Madison, Gideon v. Wainwright, and Miranda v. Arizona. After government funding for civic education virtually dried up, the State Bar realized that our civics teachers needed assistance and stepped in. Since September 2012, LRE has hosted 25 Oyez sessions with 1,548 teachers.
  • The Texas Lawyers for Texas Veterans program was developed to provide veterans with the opportunity to receive the legal aid they need through the work of local bar associations, legal aid groups, and volunteer attorneys across the state. Over 6,000 veterans have received legal assistance through this program, and other states have modeled similar programs on our program. For more information visit www.texasbar.com/tltv. Bar associations all over America have copied our program.
  • The State Bar of Texas Legal Support Services Division devotes countless hours and resources to promote access to justice—to lawyers, non-lawyer volunteers, and Texas citizens who need pro bono legal assistance. The division partners with the Texas Access to Justice Foundation and the Texas Access to Justice Commission for fundraising and to raise awareness about the needs of low-income Texans. Through programs the division supports, lawyers and legal services programs receive valuable training opportunities and other resources. The State Bar even subsidizes malpractice insurance for legal aid programs. Providing access to the legal system and protecting the public is a core mission of the State Bar.
  • The Client Security Fund refunds money to victims of a lawyer’s dishonest conduct. In the last Bar year, the Client Security Fund Subcommittee reviewed 131 applications for help as a result of the misconduct of Texas lawyers. Of those 131, 98 were approved and $640,604 was returned to 15 victims of attorney theft and to 83 who had not received a refund on unearned fees.
  • The Texas Young Lawyers Association also provides resources for the public. Examples include “The Unconscious Truth,” “Vote America,” “Healing the Wounds,” “The Little Voice,” and many more. The “Unconscious Truth” explains the physical and legal effects of underage binge drinking. “Vote America” is a video that educates and encourages students to exercise their right to vote. “The Little Voice” is a brochure aimed at teaching the public how to recognize child abuse and understand the duty to report it. This year, TYLA is adding two public education programs to its expansive list—“Slavery Out of the Shadows: Spotlight on Human Trafficking,” which highlights the growing problem of human trafficking in Texas, and “What Do Lawyers Do?” a program designed to educate potential law students about practical information to consider when making the choice to attend. Visit www.tyla.org for more information.

3. What You May Not Know

  • Lawyer Discipline: The lawyers in the Office of the Chief Disciplinary Counsel working under the supervision of the Commission on Lawyer Discipline are not seeking excuses to take the licenses of Texas lawyers. They are as committed to clearing the innocent lawyer as they are in prosecuting the unethical lawyer. In fact, during 2011–2112, Texas lawyers received only 38 disbarments and 137 suspensions, with some of these probated. 517 complaints were received and 403 were resolved. Under our grievance referral program, 55 lawyers were required to undergo drug or alcohol counseling, but received no sanctions upon their successful completion of the program.
  • Supreme Court Appointments: The State Bar has no ability to influence the appointment of lawyers and lay persons to the Supreme Court–appointed committees. There are 52 members on the Supreme Court Advisory Committee; 9 members of the Grievance Oversight Committee; 9 members of the Professional Ethics Committee for the State Bar of Texas; 9 members of the Unauthorized Practice of Law Committee; and, 9 members of the Board of Disciplinary Appeals.

    Remember that it was the Professional Ethics Committee of the State Bar that authored the infamous Opinion 611 and you will see why I am so concerned about the makeup of these committees. I see few names on these committees of lawyers whom I recognize as having been prosecutors or criminal defense lawyers or criminal court judges. For this reason, I have asked Bar staff to look at the areas of practice and geographic locations of the lawyers and lay persons on these committees in order that I can bring this to the attention of the Chief Justice, if there is not appropriate diversity in these committees.

  • The Legislature: There are limitations on our ability to work with the legislature. The State Bar is severely limited as to what it can do. In Keller v. State Bar of California, 496 U.S. 1 (1990), the Supreme Court held that mandatory bar associations cannot use bar dues to engage in political or ideological activities that are not related to the bar’s core purposes. The State Bar Act, Tex. Govt. Code § 81.1034, prohibits the State Bar from using any of its funds for influencing the passage or defeat of any legislative measures unless the measure relates to the regulation of the legal profession, improving the equality of legal services, or the administration of justice.

    This explains why, for example, the State Bar could not become involved in the debate on tort reform—an issue of great concern to the lawyers of Texas, but one that had members of the State Bar on opposite sides of the issue.

  • Limitations on the State Bar: The Supreme Court has administrative control over the State Bar. The State Bar is not autonomous.

    State Bar Board and Executive Committee meetings are subject to the Texas Open Meetings act. This means that there are specific posting rules the State Bar has to follow for these meetings, and that these meetings are open to the public.

    The State Bar is subject to the Texas Public Information Act. This means that documents within the State Bar’s possession, except for certain limited exceptions, are available to the public.

    The State Bar must submit a strategic plan, budget, and performance measures to the Supreme Court.

    The State Bar must present its annual financial audit to the Texas State Auditor’s office as well as to the Supreme Court, the Governor, and the presiding officer of each house of the legislature.

Conclusion

I am proud of what the State Bar is doing for the lawyers of Texas and for the people of Texas. Thanks to the work of the State Bar Board and our dedicated employees, we’re doing good!

This has been a remarkable year for me—and it has been fun. The nicest complement that I have had is this: “We have never seen a State Bar President here before.” If you see me in your courthouse, please come over and visit with me.

TCDLA
TCDLA
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

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