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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

II. COUNSELOR

2.1   Rule 2.1 Advisor

2.1:100   Comparative Analysis of Texas Rule

• Primary Texas References: TX Rule 2.01
• Background References: ABA Model Rule 2.1, Other Jurisdictions
• Commentary:

2.1:101      Model Rule Comparison

Texas Rule 2.01, "Advisor," provides in full that "[i]n advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice." The first sentence of Model Rule 2.1, "Advisor," sets forth a similar obligation for a lawyer in representing a client. The second sentence of the Model Rule adds: "In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation." The comments to Texas Rule 2.01 include elaboration on non-legal considerations, and observe, for instance, that a lawyer may "refer to relevant moral and ethical considerations in giving advice." Texas Rules Rule 2.01 cmt. 2.

2.1:102      Model Code Comparison

EC 7-8 notes that a lawyer need not limit his or her advice to "purely legal considerations," but also notes that the decision to forego legally available objectives or methods "because of nonlegal factors is ultimately for the client" to decide.

2:1:200   Exercise of Independent Judgment

• Primary Texas References: TX Rule 2.01
• Background References: ABA Model Rule 2.1, Other Jurisdictions
• Commentary: ABA/BNA § 31:701, ALI-LGL § 151, Wolfram § 4.3

"In advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice." Texas Rules Rule 2.01. Comment 1 to that rule elaborates:

A client is entitled to straightforward advice expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

Texas Rules Rule 2.01 cmt. 1.

2:1:300   Non-Legal Factors in Giving Advice

• Primary Texas References: TX Rule 2.01
• Background References: ABA Model Rule 2.1, Other Jurisdictions
• Commentary: ABA/BNA § 31:701, ALI-LGL § 151, Wolfram § 4.3

For a general discussion of this subject, see section 2.1:200.

2.2   Rule 2.2 Intermediary

2.2:100   Comparative Analysis of Texas Rule

• Primary Texas References: TX Rule 1.07
• Background References: ABA Model Rule 2.2, Other Jurisdictions
• Commentary:

2.2:101      Model Rule Comparison

Model Rule 2.2, "Intermediary," is parallel in Texas Rule 1.07, "Conflict of Interest: Intermediary." The Model Rule is comprised of three paragraphs ((a), (b) and (c)), which are very similar to the corresponding first three paragraphs of the Texas Rule. There are some textual differences, however. For instance, the Model Rule opens with the sentence that a lawyer may act as intermediary "if" certain conditions are met. The Texas Rule also calls for written consent, and adds the words "without the necessity of contested litigation" to subparagraph (a)(2).

The Texas Rule also adds paragraphs (d) and (e).

2.2:102      Model Code Comparison

The Model Code does not appear to contain a free-standing rule on intermediation, but touches on multiple representation issues in, for instance, DR 5-105 and EC 5-20.

2.2:200   Relationship of Intermediation to Joint Representation

• Primary Texas References: TX Rule 1.07
• Background References: ABA Model Rule 2.2, Other Jurisdictions
• Commentary: ABA/BNA § 51:1501, ALI-LGL § 153, Wolfram §§ 8.7, 13.6

Compare Texas Rule 1.06, particularly paragraphs (d) and (e) of that rule.

2.2:300   Preconditions to Becoming an Intermediary

• Primary Texas References: TX Rule 1.07(a)
• Background References: ABA Model Rule 2.2(a), Other Jurisdictions
• Commentary: ABA/BNA § 51:1501, ALI-LGL § 153, Wolfram § 8.7, 13.6

Paragraph (a) of Texas Rule 1.07 provides in full:

A lawyer shall not act as intermediary between clients unless:

(1)   the lawyer consults with each client concerning the implications of the common representation, including the advantages and risks involved, and the effect on the attorney-client privileges, and obtains each client's written consent to the common representation;

(2)   the lawyer reasonably believes that the matter can be resolved without the necessity of contested litigation on terms compatible with the clients' best interests, that each client will be able to make adequately informed decisions in the matter and that there is little risk of material prejudice to the interests of any of the clients if the contemplated resolution is unsuccessful; and

(3)   the lawyer reasonably believes that the common representation can be undertaken impartially and without improper effect on other responsibilities the lawyer has to any of the clients.

Texas Rules Rule 1.07(a).

2.2:400   Communication During Intermediation

• Primary Texas References: TX Rule 1.07(b)
• Background References: ABA Model Rule 2.2(b), Other Jurisdictions
• Commentary: ABA/BNA § 51:1501, ALI-LGL § 153, Wolfram § 8.7, 13.6

Paragraph (b) of Texas Rule 1.07 provides in full:

While acting as intermediary, the lawyer shall consult with each client concerning the decision to be made and the considerations relevant in making them, so that each client can make adequately informed decisions.

Texas Rules Rule 1.07(b).

2.2:500   Consequences of a Failed Intermediation

• Primary Texas References: TX Rule 1.07(c)
• Background References: ABA Model Rule 2.2(c), Other Jurisdictions
• Commentary: ABA/BNA § 51:1501, ALI-LGL § 153, Wolfram § 8.7, 13.6

Paragraph (c) of Texas Rule 1.07 provides in full:

A lawyer shall withdraw as intermediary if any of the clients so requests, or if any of the conditions stated in paragraph (a) is no longer satisfied. Upon withdrawal, the lawyer shall not continue to represent any of the clients in the matter that was the subject of the intermediation.

Texas Rules Rule 1.07(c).

2.3   Rule 2.3 Evaluation for Use by Third Persons

2.3:100   Comparative Analysis of Texas Rule

• Primary Texas References: TX Rule 2.02
• Background References: ABA Model Rule 2.3, Other Jurisdictions
• Commentary:

2.3:101      Model Rule Comparison

Texas Rule 2.02 and Model Rule 2.3 are both titled "Evaluation for Use by Third Persons." Texas Rule 2.02 is very similar to Model Rule 2.3, but omits the language found in paragraph (b) of the Model Rule. While confidentiality issues are not explicitly addressed in the text of Texas Rule 2.02 itself, it does not appear that the drafters of the Rule intended for confidentiality concerns to be irrelevant to third party opinion letters. See Robert P. Schuwerk & John F. Sutton, Jr., A Guide to the Texas Disciplinary Rules of Professional Conduct, 27A Hou. L. Rev. 1, 229 (1999) ("Model Rule 2.3(b) was deleted because it neither required nor prohibited any conduct on the part of a lawyer. However, Texas Rule 1.05," the general rule on confidentiality "implicitly embodies its basic principle.").

Texas Rule 2.02 essentially restates the Model rule in negative terms:

A lawyer shall not undertake an evaluation of a matter affecting a client for the use of someone other than the client unless: (a) the lawyer reasonable believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client; and (b) the client consents after consultation.

Texas Rules Rule 2.02 (emphasis added).

2.3:102      Model Code Comparison

There apparently was not a counterpart in the Model Code to Model Rule 2.3 or Texas Rule 2.02.

2.3:200   Undertaking an Evaluation for a Client

• Primary Texas References: TX Rule 2.02
• Background References: ABA Model Rule 2.3, Other Jurisdictions
• Commentary: ABA/BNA § 71:701, ALI-LGL § 152, Wolfram § 13.4

A lawyer often will be asked by a client to conduct an investigation intended exclusively for the benefit of that client. For instance, counsel for a lender might be asked by the lender to conduct an inquiry into the affairs of a potential borrower. There are other situations, by contrast, in which a client may request the client's lawyer to provide a legal opinion intended to be relied on by another party to the transaction — a party that the lawyer does not represent. For instance, a potential purchaser of real property might request a title opinion from counsel for the party attempting to sell the property. This type of situation is addressed in Model Rule 2.3, and the Texas analogue (Texas Rules Rule 2.02).

Texas Rule 2.02 provides that a lawyer shall not undertake an evaluation of a matter affecting a client for the use of someone other than the client unless:

The lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client; and

The client consents after consultation.

Texas Rules Rule 2.02.

The official comment to Texas Rule 2.02 elaborates in pertinent part:

When the evaluation is intended for the information or use of a third person, the evaluation involves a departure from the normal client-lawyer relationship. The lawyer must be satisfied as a matter of professional judgment that making the evaluation is compatible with other functions undertaken in behalf of the client. For example, if the lawyer is acting as advocate in defending the client against charges of fraud, it would normally be incompatible with that responsibility for the lawyer to perform an evaluation for others concerning the same or a related transaction. Assuming no such impediment is apparent, however, the lawyer should advise the client of the implications of the evaluation, particularly the lawyer's responsibilities to third persons and the duty to disseminate the findings.

Texas Rules Rule 2.02 cmt. 5.

2.3:300   Duty to Third Persons Who Rely on Lawyer's Opinion [see also 1.1:420]

• Primary Texas References: TX Rule 2.02
• Background References: ABA Model Rule 2.3, Other Jurisdictions
• Commentary: ABA/BNA § 71:701, ALI-LGL § 152, Wolfram § 13.4.4

Like Model Rule 2.3, Texas Rules Rule 2.02 does not address the legal question whether a lawyer owes a duty for purposes of civil liability to persons who rely on an opinion provided by the lawyer. For a general discussion of potential lawyer liability issues involving non-clients, see 1.1:400 and following sections.

2.3:400   Confidentiality of an Evaluation

• Primary Texas References: TX Rule 2.02
• Background References: ABA Model Rule 2.3, Other Jurisdictions
• Commentary: ABA/BNA § 71:704, ALI-LGL § 152, Wolfram § 13.4.3

Texas Rule 2.02 itself provides limited guidance regarding the confidentiality of an evaluation. Official comment 6 to Texas Rule 2.02 observes, somewhat cryptically, that "[i]f after a lawyer has commenced an evaluation, the client refused to comply with the terms upon which it was understood the evaluation was to have been made, the lawyer's obligations are determined by law, having reference to the terms of the client's agreement and the surrounding circumstances." Texas Rules Rule 2.02 cmt. 6.

2.4   Rule 2.4 Lawyer Serving as a Third-Party Neutral

2.4:100   Comparative Analysis of Texas Rule

• Primary Texas References:
• Background References: ABA Model Rule 2.4, Other Jurisdictions
• Commentary:

MR 2.4 was added in February 2002. The Reporter's explanation of the change reads as follows:

The role of third-party neutral is not unique to lawyers, but the Commission recognizes that lawyers are increasingly serving in these roles. Unlike nonlawyers who serve as neutrals, lawyers may experience unique ethical problems, for example, those arising from possible confusion about the nature of the lawyer's role. The Commission notes that there have been a number of attempts by various organizations to promulgate codes of ethics for neutrals (e.g., aspirational codes for arbitrators or mediators or court enacted rules governing court-sponsored mediators), but such codes do not typically address the special problems of lawyers. The Commission's proposed approach is designed to promote dispute resolution parties' understanding of the lawyer-neutral's role.

2.4:101      Model Rule Comparison

Texas has not adopted the new model rule.

2.4:200   Definition of "Third-Party Neutral"

• Primary Texas References:
• Background References: ABA Model Rule 2.4, Other Jurisdictions
• Commentary:

Texas has not adopted the new model rule.

2.4:300   Duty to Inform Parties of Nature of Lawyer's Role

• Primary Texas References:
• Background References: ABA Model Rule 2.4, Other Jurisdictions
• Commentary:

Texas has not adopted the new model rule.

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