Texas Legal Ethics
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.
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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