Texas Legal Ethics

1.2 Rule 1.2 Scope of Representation

1.2:100 Comparative Analysis of Texas Rule

• Primary Texas References: TX Rule 1.02
• Background References: ABA Model Rule 1.2, Other Jurisdictions
• Commentary:

1.2:101 Model Rule Comparison

Texas Rule 1.02, "Scope and Objectives of Representation," addresses a number of related subjects in one rule. It provides a general framework for what a lawyer typically ought to do for a client—and what a lawyer should not do (e.g., knowingly assist a client in committing a crime or fraud). Certain of the limits on what a lawyer is free to do for a client are also addressed in other Texas Rules. Additionally, Texas Rule 1.02 observes that a lawyer can limit the scope of the lawyer's representation of a client under appropriate circumstances.

Texas Rule 1.02 is patterned after but not identical to Model Rule 1.2 ("Scope of Representation").

Paragraph (a) of the Texas Rule is generally similar to paragraph (a) of the Model Rule. Likewise, paragraph (b) of the Texas Rule is analogous to paragraph (c) of the Model Rule, and paragraph (c) of the Texas Rule is analogous to paragraph (d) of the Model Rule. Paragraph (f) of the Texas Rule is drawn from paragraph (e) of the Model Rule.

Paragraphs (d), (e), and (g) of Texas Rule 1.02 do not correspond to explicit, directly parallel provisions in Model Rule 1.2, though the subject matter of Texas Rule 1.02(g) is addressed in Model Rule 1.14 ("Client Under a Disability"). Paragraph (b) of the Model Rule does not have a direct analogue in the text of Texas Rule 1.02, but appears to be generally consistent with the spirit of the Texas Rules. See Texas Rule 1.13 cmt. 3.

1.2:102 Model Code Comparison

DR 7-101(A)(1) states that a "lawyer shall not intentionally . . . fail to seek the lawful objectives of his client through reasonably available means permitted by law," but a lawyer does not violate the disciplinary rule by "avoiding offensive tactics . . . ." EC 7-7 and 7-8 address decision making rights and responsibilities as between client and lawyer. For further discussion, see generally Model Rule 1.2 (Code Comparison).

1.2:200 Creating the Client-Lawyer Relationship

• Primary Texas References: TX Rule 1.02
• Background References: ABA Model Rule 1.2, Other Jurisdictions
• Commentary: ABA/BNA § 31:101, ALI-LGL §§ 26-29A, Wolfram § 9.2

1.2:210 Formation of Client-Lawyer Relationship

A client-lawyer relationship is a contractual relationship in which the lawyer and clients agree for the lawyer to provide professional legal services to the client; under Texas law, there is no attorney-client relationship absent a showing of privity of contract. E.g., Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187 (5th Cir. 1995).

1.2:220 Lawyer's Duties to Prospective Client

If a prospective client consults with a lawyer in a good faith attempt to retain counsel for purposes of providing legal advice, the attorney-client privilege can apply to those communications even if no attorney-client relationship is formed, and the lawyer generally may have a duty to preserve the confidentiality of those communications. Tex. R. Evid. 503(a); Texas Rules Rule 1.09 cmt. 4A.

1.2:230 When Representation Must Be Declined [see 1.16:200-230]

A representation must be declined if a lawyer realizes that the representation will entail violation of one or more of the Texas Rules. For elaboration, see section 1.2:100 (setting forth Texas Rule 1.02) and section 1.16:100 and immediately following sections (addressing Texas Rule 1.15 ("Declining or Terminating Representation")).

1.2:240 Client-Lawyer Agreements

Except with respect to contingent fee agreements, the Texas Rules do not require written fee agreements between client and lawyer. For a discussion of contingent fee agreements, see section 1.5:600 and immediately following sections. For discussion of certain agreements between lawyer and client entered into during the course of the attorney-client relationship, see section 1.8:100 and immediately following sections. Texas Rule 1.07, "Conflict of Interest: Intermediary," calls for written client consent in some circumstances.

1.2:250 Lawyer's Duties to Client in General

A lawyer has a general obligation to carry out a client's lawful objectives within the bounds permitted by law, and a lawyer is at liberty to introduce for the client's consideration aspects of a particular issue not strictly governed by black-letter law. Core duties for the lawyer to client under the Texas Rules include "Competent and Diligent Representation" (Texas Rule 1.01), "Communication" (Texas Rule 1.02), and protection of confidential information as set forth in Texas Rule 1.05 ("Confidentiality of Information").

1.2:260 Client's Duties to Lawyer

A client's duties to a lawyer generally include the duties to provide the lawyer with all information necessary and proper for the representation, to be available to the lawyer as may be needed to carry out the representation, and to not insist that the lawyer pursue courses of action that would violate the lawyer's own legal and ethical obligations.

1.2:270 Termination of Lawyer's Authority

A client generally is free to terminate a lawyer, with or without cause, subject to any obligation to compensate the lawyer for his or her fee. A client lacking sufficient legal capacity may not be legally capable of effecting such termination, however. For further elaboration, see Texas Rule 1.15(a)(3) and comments 4 and 5 to that rule.

1.2:300 Authority to Make Decisions or Act for Client

• Primary Texas References: TX Rule 1.02
• Background References: ABA Model Rule 1.2(a), Other Jurisdictions
• Commentary: ABA/BNA § 31.301, ALI-LGL §§ 32-34, 37-41, Wolfram §§ 4.4, 4.6

Comment 1 to Texas Rule 1.02 addresses this fundamental issue.

1.2:310 Allocating Authority to Decide Between Client and Lawyer

For treatment of this subject, see section 1.2:300.

1.2:320 Authority Reserved to Client

For treatment of this subject, see section 1.2:300.

1.2:330 Authority Reserved to Lawyer

For treatment of this subject, see section 1.2:300.

1.2:340 Lawyer's Authority to Act for Client

For treatment of this subject, see section 1.2:300.

1.2:350 Lawyer's Knowledge Attributed to Client

[The discussion of this topic has not yet been written.]

1.2:360 Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility

[The discussion of this topic has not yet been written.]

1.2:370 Appearance Before a Tribunal

[The discussion of this topic has not yet been written.]

1.2:380 Authority of Government Lawyer

Texas Rule 1.02, "Scope and Objectives of Representation," refers to "lawyer[s]" generally and does not explicitly distinguish between lawyers representing governmental entities versus lawyers in private practice. Texas Rule 1.12, "Organization as a Client," addresses important issues that can arise when a lawyer represents an organizational client rather than an individual person (e.g., the rule addresses matters including relevant considerations when a member of the organizational client has engaged in improper conduct). Texas Rule 1.12, which is discussed in greater detail at section 1.13:101 and immediately following sections, offers in comment 9 these insights regarding governmental clients:

The duty defined in this Rule applies to governmental organizations. However, when the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful official act is prevented or rectified, for public business is involved. In addition, duties of lawyers employed by the government or lawyers in military service may be defined by statutes and regulations. Therefore, defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context. Although in some circumstances the client may be a specific agency, it is generally the government as a whole. For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the government as a whole may be the client for purpose of this Rule. Moreover, in a matter involving the conduct of government officials, a government lawyer may have authority to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. This Rule does not limit that authority. See Preamble: Scope.

Texas Rules Rule 1.12 cmt. 9.

1.2:400 Lawyer's Moral Autonomy

• Primary Texas References: TX Rule 1.02
• Background References: ABA Model Rule 1.2(b), Other Jurisdictions
• Commentary: Wolfram § 10.4

For further discussion touching on this subject, see section 0.1:102.

1.2:500 Limiting the Scope of Representation

• Primary Texas References: TX Rule 1.02(b)
• Background References: ABA Model Rule 1.2(c), Other Jurisdictions
• Commentary: ABA/BNA § 31:301, ALI-LGL § 30, Wolfram § 5.6.7

"A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation." Texas Rules Rule 1.02(b). Comment 4 to Texas Rule 1.02 elaborates:

The scope of representation provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. For example, a retainer may be for a specifically defined objective. Likewise, representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. Similarly, when a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage. The scope within which the representation is undertaken also may exclude specific objectives or means, such as those that the lawyer or client regards as repugnant or imprudent.

Texas Rule 1.02 cmt. 4.

Comment 5 to the rule further observes:

An agreement concerning the scope of representation must accord with the Texas Disciplinary Rules of Professional Conduct and other law. Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.01, or to surrender the right to terminate the lawyer's services or the right to settle or continue litigation that the lawyer might wish to handle differently.

Texas Rule 1.02 cmt. 5.

1.2:510 Waiver of Client or Lawyer Duties (Limited Representation)

For treatment of this subject, see section 1.2:500.

1.2:600 Prohibited Assistance

• Primary Texas References: TX Rule 1.02(c), (d), (e) & (f)
• Background References: ABA Model Rule 1.2(d), Other Jurisdictions
• Commentary: ABA/BNA § 31:301, ALI-LGL § 151, Wolfram § 13.3

For treatment of this subject, see sections 1.2:610 and 1.2:620.

1.2:610 Counseling Illegal Conduct

Paragraphs (e) through (f) of Texas Rule 1.02 address this subject; those paragraphs provide in full:

(e) When a lawyer has confidential information clearly establishing that the lawyer's client has committed a criminal or fraudulent act in the commission of which the lawyer's services have been used, the lawyer shall make reasonable efforts under the circumstances to persuade the client to take correction action.

(f) When a lawyer knows that a client expects representation not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

Texas Rules Rule 1.02 (e)-(f).

1.2:620 Assisting Client Fraud

For treatment of this subject, see section 1.2:610.

1.2:630 Counseling About Indeterminate or Uncertain Law

Paragraph (d) of Texas Rule of Texas Rule 1.02 provides in full:

When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in substantial injury to the financial interests or property of another, the lawyer shall promptly make reasonable efforts under the circumstances to dissuade the client from commiting the crime or fraud.

Texas Rules Rule 1.02(d).

1.2:700 Warning Client of Limitations on Representation

• Primary Texas References: TX Rule 1.02
• Background References: ABA Model Rule 1.2(e), Other Jurisdictions
• Commentary: ABA/BNA § 31:307, ALI-LGL § 165,

Paragraph (f) of Texas Rule 1.02 provides in full:

When a lawyer knows that a client expects representation not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

Texas Rules Rule 1.02(f).

1.2:800 Identifying to Whom a Lawyer Owes Duties

• Primary Texas References: TX Rule 1.02
• Background References: ABA Model Rule 1.2, Other Jurisdictions
• Commentary: ABA/BNA § 31:101, ALI-LGL §§ 72, 73, 155, 156A, Wolfram § 7.2

See generally, for instance, sections 1.1:300 and 1.1:400 and related sections, as well as certain of the sections immediately following this one.

1.2:810 Prospective Clients [see 1.2:220]

For treatment of this subject, see section 1.2:220.

1.2:820 Persons Paying for Representation of Another [see 1.7:400]

Paragraph (e) of Texas Rule 1.08, "Conflict of Interest, Prohibited Transactions," provides in full:

A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1) the client consents;

(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and

(3) information relating to representation of a client is protected as required by Rule 1.05.

Texas Rules Rule 1.08(e).

1.2:830 Representing an Entity [see also 1.13:200]

For treatment of this subject, see section 1.13:200 and immediately following sections.

1.2:840 Representing a Fiduciary [see also 1.13:520]

[The discussion of this topic has not yet been written.]

1.2:850 Class Action Clients

Comment 3 to Texas Rule 1.02 observes in pertinent part that "in class actions a lawyer may recommend a settlement of the matter to the court over the objections of the named plaintiffs in the case." Texas Rules Rule 1.02 cmt. 3.