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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Texas Legal Ethics

1.4   Rule 1.4 Communication

1.4:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 1.03
Background References: ABA Model Rule 1.4, Other Jurisdictions
Commentary:

1.4:101      Model Rule Comparison

Texas Rules Rule 1.03, "Communication," which is essentially identical to Model Rule 1.4 of the same name, provides in full:

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Texas Rules Rule 1.03.

1.4:102      Model Code Comparison

The Model Code apparently did not address communication in a free-standing Disciplinary Rule. The Model Code did, however, touch upon the subject in, for instance, DR 9-102(B)(1), DR 6-101(A)(3), and EC 7-8 and EC 9-2. See generally Model Rules Rule 1.4 (Code Comparison).

1.4:200   Duty to Communicate with Client

Primary Texas References: TX Rule 1.03
Background References: ABA Model Rule 1.4, Other Jurisdictions
Commentary: ABA/BNA § 31.501, ALI-LGL §§ 31, Wolfram §§ 4.5, 4.6

Texas Rule 1.03, "Communication," deals with the related responsibilities to the client to communicate and to consult. Communication focuses largely on keeping the client abreast of developments in the matter. See Texas Rules Rule 1.03(a). Consultation focuses more on explaining "a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Texas Rules Rule 1.03(b).

As a general principle, the Texas rules uphold the view that the "client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued to the extent the client is willing and able to do so." Texas Rules Rule 1.03 cmt. 1. For instance, a lawyer generally should inform a litigation client of a settlement offer's "substance unless prior discussions with the client have left it clear that the proposal will be unacceptable." The Texas rules further observe that adequacy of communication "depends in part on the kind of advice or assistance involved," and that in certain situations practical exigency may require a lawyer to act for a client without prior consultation." Texas Rules Rule 1.03 cmts. 1 & 2.

For an interesting case applying considerations generally analogous to these, see Gamez v. State Bar of Texas, 765 S.W.2d 827 (Tex. App.—San Antonio 1988, writ denied) (challenging lawyer for, among other things, allegedly failing to discuss with divorce client which spouse would receive right to claim income tax exemption for children of the marriage, as well as attorney's alleged failure to obtain client's approval of tax exemption order granting exemptions to client's spouse), cert. denied, 498 U.S. 823 (1990).

1.4:300   Duty to Consult with Client

Primary Texas References: TX Rule 1.03
Background References: ABA Model Rule 1.4(b), Other Jurisdictions
Commentary: ABA/BNA § 31.501, ALI-LGL §§ 31, Wolfram §§ 4.5

For discussion of this topic, see section 1.4:200.

1.4:400   Duty to Inform the Client of Settlement Offers

Primary Texas References: TX Rule 1.03
Background References: ABA Model Rule 1.4, Other Jurisdictions
Commentary: ABA/BNA § 31.501, ALI-LGL §§ 31, Wolfram §§ 4.5

The Texas Rules contemplate that a "lawyer who receives from opposing counsel either an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable." Texas Rules Rule 1.03 cmt. 1.

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