South Texas College of Law, Annotations (Houston, Tex.), Vol. 7, No. 5, November, 1978 Page: 8 of 9
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November 1978 - ANNOTATIONS - Page 7
Chief Justice Greenhill
but when you get down to it, it is a
very sore matter, locally.
But, if we do not redistrict (and
I think we should) then the only
answer is to create more courts.
And the legislature has created a
lot of courts. It created almost SO
new district courts the last time.
It created 17 in Harris County.
In regard to the proposal by the
Sunset Committee to place
examination of attorneys, licens-
ing and enforcement under direct
supervision of the Supreme
Court, do you believe this will
place too much responsibility
upon the Supreme Court, and add
too much of a burden?
Indirectly, this is the way it is
now. We select the Board of Law
Examiners. We don't write the
questions or grade the papers.
We select the examiners and
provide the guidelines. I don't
think it would add any more of a
burden on the Supreme Court
than there now is.
Referring to Art. 2 § 1 of the
Texas State Constitution, where
does the Supreme Court get the
authority to control the State Bar?
Well, you might ask the
question the other way. Where
does the legislature get the
authority to control anything in
the judicial branch? Lawyers are
generally considered officers of
the court. The practice of law
comes under the judicial branch.
Now I am not suggesting this as
any kind of a statement but while
we are on hypothetical questions,
what business does the legisla-
ture have telling the officers of
the court how the officers of the
court will be selected?
In many states of the United
States, the Supreme Court of
these states operates the practice
of law under the inherent power
of the Supreme Court, as the head
of the judicial branch. Several of
them have gone so far as to
declare unconstitutional, acts of
the legislature which deal with
admissions of lawyers to practice.
So it is a two-edged sword.
Well, is the Texas State Bar a
State Agency or part of the
judicial branch?
I cannot comment on that
because it may have to be decided
in a law suit. But let's turn this
thing around a little bit. Suppose
the Supreme Court of Texas, for
example, should sit down and
make rules for the conduct of the
legislature. How their committees
should meet and what the quali-
fications of their committee clerks
should be. I think it would be
considered a judicial interference
with the legislative process.
More seriously, put it on
Article 2,1 think there is more of a
danger of intrusion by the legis-
lature upon the judiciary and vice
versa. I am not going to come out
on any stump and advocate that.
But just to answer your question,
I think we get along just fine with
the legislature.
I hate to run it into the ground,
but I was under the impression
that it would take a constitutional
amendment to give the court any
authority which is not designated
to the judicial branch in the Texas
State Constitution.
If you begin with the proposi-
tion that there are three co-equal
branches — executive, legislative
and judicial — and each will not
interfere with the other, it does
not seem to me that the courts
cannot do anything until the
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legislature says they can; any
more than the legislature can not
do anything until the courts say
they can.
Do you think the issue will ever
come up?
Well, there is no use speculat-
ing on that. It might in the future.
The Sunset Committee has also
proposed the elimination of jury
Mais in disciplinary matters. Will
this amount to a deprivation of a
right to a jury trial?
I prefer not to answer that
because if it were adopted it
would ultimately come to this
court.
The Sunset Committee has also
proposed that the rules governing
advertising for lawyers be elimi-
nated. And that the State Bar
follow the guidelines set forth by
the United States Supreme Court,
in Bates-Osteln. The court stated
that limited advertising by attor-
neys has First Amendment privi-
leges. Restrictions would be
made where public harm is
shown. Do you believe this Is a
vague guideline set by the United
States Supreme Court?
Of course, it is vague. We are
studying the rules now to be
promulgated by our court. We
suggested some that provided for
advertising only in the news
media, which the United States
Supreme Court has in its opinion
in Bates-Ostein. We also called
upon the Bar to make further
studies, and to make recom-
mendations to us with regard to
advertising in other forms of
media such as radio and tele-
vision.
But you cannot get a solid rule
out of Bates-Ostein, at least I
can't. It says that as a right of free
speech, lawyers shall have the
right to advertise civil services,
uncontested divorces, change of
names and other similar matters
not contested, in the news media.
It doesn't say radio, it doesn't say
television. Whether it is uncon-
tested is a matter of judgment.
I think the Supreme Court of
the United States is trying to
make a judgment in a very narrow
area and wait to see what comes
next. You cannot get any kind of a
rule out of Bates-Ostein because
somebody has to say what an
uncontested matter like change of
name is.
Continued from page 4
It would also seem to me that
the test promulgated by Bates-
Osteln, the public harm test, Is so
vague that it cannot be used to
any definite results?
Right. What the Supreme
Court is talking about is not
necessarily legal ethics, but free-
dom of speech. Many people
regard ethics as being a separate
problem from speech, It can be
argued that it is a right of free
speech to advertise an uncon-
tested divorce for $100 but that
would not necessarily make it
ethical. There are two separate
problems involved here.
The State Bar Act, as amended
by House Bill 424 of the 64th
Legislature, provides for partici-
pation of qualified law students in
the trial of cases. It also provides
for qualified unlicensed law
graduates. One of the
supervised by a licensed attorney.
This licensed attorney must also
be certified by the local bar. Do
Yes, I do. I think it should be
enlarged. The program should be
used to assist law students in
every way. As in internship
program, it is the only thing we
have. If law students and un-
licensed graduates have a chance
to work in this type of program,
they are much more experienced
by the time they graduate from
law school. This should also be a
help to the lawyers trying the case
and a help to the judge.
This is one of our rules that we
make without specific statutory
authority you mentioned earlier.
This is completely under the
control of the trial judge. We have
had no difficulty as far as I know.
The difficulties we have had are
that our rule is not broad enough.
Not enough people are being
authorized to take part in the
program.
Another problem now is the
malpractice insurance aspect.
The student participant must
carry malpractice insurance. In
Houston, for example, there is a
$25,000 deductible. The Presi-
dent of the Houston Bar has
raised a question as to whether
the $25,000 deductible is of any
value when you have student
participation. Students are prob-
ably not going to make a $25,000
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mistake. This must be given
study.
I mentioned the requirement of
an attorney to be certified by the
local bar. Wfll this requirement
limit the participation of local
attorneys who are disfavored by
the bar?
I don't know the answer to that.
No lawyer has said to us that he
has been refused certification. I
doubt that local bars are so much
of an entity as to have corporate
thinking. The local bars are
composed of ordinary people.
Rationale to this rule is that some
lawyers are on the fringe and may
not be qualified to be in charge of
some law student or unlicensed
law graduate. As far as I know, no
lawyer has ever been denied
certification. There may have
been, but I have not heard of it.
In the same respect, this same
a law school's
the student's
to participate in the trial,
and this revocation carries no
personal right of appeal by the
I am not familiar with that at
all. I can understand the reason
for the rule, if the Dean has had
problems with the student not
attending class or some other
type of problem which would
interfere and which has been
caused by outside activity. But
again I have not heard of any
problems such as this.
Do you favor the general tread
of specialization for lawyers?
We thought that the program
was a good one. You don't have to
specialize if you don't want to.
You have full access to the
courthouse whether you are a
specialist or not. It is one of those
rules that was begun prior to the
Bates-Ostein decision by the
United States Supreme Court
about advertising.
If a person is qualified as a
specialist, he can list himself in
the Yellow Pages as a specialist,
say in divorce law, admiralty, and
so forth. The public can find him
without going through 13 pages
from A to Z of lawyers they have
never heard of. So having a
specialization program, helps
people find the type of lawyer that
they are looking for and at the
same time it upgrades the profes-
sion. Specialty courses are very
good review courses. It is hard to
pass one of these specialty
examinations.
Do you believe that this could
possibly lead to the extinction of
the general practitioner?
The extinction, no. I sure don't.
There are 30,000 lawyers in
Texas. I don't know how many of
them are specialists, but it is a
very small percentage. I think it is
a helpful thing, particularly in the
urban areas.
In a rural area, where a lawyer
does everything like a good
country doctor, you really don't
have a need for a specialist. He
doesn't need to be specialized.
People know where he is.
It has another effect. You may
be familiar with criticism by Chief
Justice Burger wherein he says 80
percent or 50 percent of lawyers
are not competent of the things
that they were supposed to have
learned in law school. By special-
izing in an area, they more or less
less are certified to be competent.
They get a greater degree of
competence.
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Dies, David & Bettman, Gerald S. South Texas College of Law, Annotations (Houston, Tex.), Vol. 7, No. 5, November, 1978, newspaper, November 1978; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth144379/m1/8/: accessed May 4, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting South Texas College of Law.