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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

III. ADVOCATE

3.1   Rule 3.1 Meritorious Claims and Contentions

3.1:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 3.01
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary:

3.1:101      Model Rule Comparison

Texas Rule 3.01, "Meritorious Claims and Contentions," which is derived from Model Rule 3.1 of the same name, provides in full that a "lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous." The Model Rule elaborates that the lawyer's freedom in this regard "includes a good faith argument for an extension, modification, or reversal of existing law." (Comment 2 to the Texas Rule makes much the same point.) The text of the Model Rule further provides that "a lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established." The same point is made in Comment 3 to the Texas Rule, which adds that the rule "does not prohibit the use of a general denial or other pleading to the extent authorized by applicable rules of practice or procedure."

3.1:102      Model Code Comparison

DR 7-102(A)(1) provides that a lawyer may not take action on behalf of a client "when he knows or when it is obvious that such action would serve merely to harass or maliciously injury another." DR 7-102(A)(2) includes language regarding "good faith argument for an extension, modification, or reversal of existing law."

3.1:200   Non-Meritorious Assertions in Litigation

Primary Texas References: TX Rule 3.01
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL § 170, Wolfram § 11.2

Rule 13 of the Texas Rules of Civil Procedure provides in full:

The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment. Attorneys or parties who shall bring a fictitious suit as an experiment to get an opinion of the court, or who shall file any fictitious pleading in a cause for such a purpose, or shall make statements in pleading which they know to be groundless and false, for the purpose of securing a delay of the trial of the cause, shall be held guilty of a contempt. If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate sanction available under Rule 215-2b, upon the person who signed it, a represented party, or both.

Courts shall presume that pleadings, motions, and other papers are filed in good faith. No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order. "Groundless" for purposes of this rule means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law. A general denial does not constitute a violation of this rule. The amount requested for damages does not constitute a violation of this rule.

Tex. R. Civ. P. 13; see also Texas Civil Practice and Remedies Code, including Chapters 9 through 11 (setting forth other provisions in this area).

3.1:300   Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

Primary Texas References: TX Rule 3.01
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:151, ALI-LGL § 170, Wolfram § 11.2

For a general discussion of this subject, see section 3.1:200.

3.1:400   Civil Liability for Abusive Litigation Practice [see 1.1:520]

Primary Texas References: TX Rule 3.01
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL §§ 77, 170, Wolfram § 11.2

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

3.1:500   Complying with Law and Tribunal Rulings

Primary Texas References: TX Rule 3.04(d)
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 16:1201, ALI-LGL § 165, Wolfram §§ 12.1.3, 13.3.7

For instance, paragraph (d) of Texas Rule 3.04 provides:

Knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client's willingness to accept any sanctions arising from such disobedience.

Texas Rules Rule 3.04(d).

3.2   Rule 3.2 Expediting Litigation

3.2:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 3.02
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary:

3.2:101      Model Rule Comparison

Model Rule 3.2, "Expediting Litigation," provides that "a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." Texas Rule 3.02, "Minimizing the Burdens and Delays of Litigation," expresses the concept in negative terms: "In the course of litigation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter."

3.2:102      Model Code Comparison

DR 7-102(A)(1) provides that a lawyer should not file a suit, assert a defense or the like "when he knows or it is obvious that such action would serve merely to harass or maliciously inquire another."

3.2:200   Dilatory Tactics

Primary Texas References: TX Rule 3.02
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:202, ALI-LGL § 166, Wolfram § 11.2.5

For a general discussion of this subject, see section 3.2:101.

3.2:300   Judicial Sanctions for Dilatory Tactics

Primary Texas References: TX Rule 3.02
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:202, ALI-LGL § 166, Wolfram § 11.2.5

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

3.3   Rule 3.3 Candor Toward the Tribunal

3.3:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 3.03
Background References: ABA Model Rule 3.3, Other Jurisdictions
Commentary:

3.3:101      Model Rule Comparison

A.   Texas Disciplinary Rule of Professional Conduct 3.03

Rule 3.03 of the Texas Rules provides the standard for a lawyer's candor towards tribunals.

Generally, Texas Rule 3.03(a) provides that the lawyer should not make a false statement or offer false evidence to a tribunal. In addition, a lawyer should not fail to disclose facts to the tribunal which are necessary to avoid assisting a criminal or fraudulent act, or to prevent the tribunal from making an informed decision in an ex parte proceeding. Last,the lawyer should not fail to disclose controlling authority which is directly adverse to his client's position. Texas Rules Rule 3.03(a).

Under this rule, an advocate is responsible for pleadings and other documents prepared for litigation, but it is usually not required to have personal knowledge of matters asserted therein, provided the assertions were not made personally by the lawyer. Texas Rule 3.03 cmt. 2. Furthermore, although a lawyer is not required to make a disinterested exposition of the law, he or she has a duty to recognize the existence of pertinent legal authority, and disclose it when such authority is controlling and adverse to his case and has not been disclosed by the opposing party. Texas Rules Rule 3.03 cmt. 3. Finally, when a lawyer is asked to place into evidence testimony or other evidence that the lawyer knows to be false, the lawyer should first urge the client or other person involved not to offer such evidence. Texas Rules Rule 3.03 cmt. 5. If the request comes from the lawyer's client, the lawyer must not only refuse to offer it but may be justified in seeking to withdraw from the case. Texas Rules Rule 3.03 cmts. 5 and 6.

Texas Rule 3.03(b) provides the remedies available to a lawyer when he subsequently determines that he has offered material evidence that is false. In this situation, the rule instructs the lawyer to make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the evidence, and if unsuccessful, the lawyer shall take reasonable remedial measures which may include the disclosure of the true facts. The proper resolution of this dilemma in criminal cases is complicated by (1) the substantial penalties that a criminal accused will face upon conviction, and (2) the defendant's right to take the stand should he or she so desire. Texas Rules Rule 3.03(b) cmt. 10. Although a criminal accused has the right to assistance of counsel and the right to testify, he or she does not have the right to assistance of counsel in committing perjury. Texas Rules Rule 3.03 cmt. 12.

Texas Rule 3.03(c) provides that the time limit on the duties stated in paragraphs (a) and (b) continues as long as there is a reasonable possibility of taking corrective legal actions before the tribunal.

B.   ABA Model Rule of Professional Conduct 3.3.

ABA Model Rule 3.3 also lays out a lawyer's duties regarding candor towards the tribunal. The language and structure of Model Rule 3.3 are largely similar to those of Texas Rule 3.03, and the lawyer's duties under both rules are largely consistent. For example, the language in Model Rule 3.3(a)(1)-(3), (b), and (d) is essentially similar to that in Texas Rule 3.03(a)(1)(2) and (4), (c), and (a)(3). Model Rule 3.3; Texas Rules Rule 3.03. However, some minor differences do exist. Model Rule 3.3 expressly provides that a lawyer may refuse to offer evidence that the lawyer reasonably believes is false, while neither the Texas rule does not use this phraseology. Model Rule 3.3(c); Texas Rules Rule 3.03. In addition, the Texas rule expressly requires the lawyer to make a good faith effort to persuade the client to withdraw false evidence, and the comments state that the lawyer is justified in seeking to withdraw when the client requests the lawyer to offer evidence the lawyer knows to be false. Texas Rules Rule 3.03(b) cmt. 6. The Model rule does not expressly require the lawyer to persuade the client that false evidence should not be offered, though it is discussed in the comments. Model Rule 3.3 cmt. 11. The comments to the Model Rule state that the lawyer must first confer with the client confidentially; if that fails, seek to withdraw; and if withdrawal is not proper or is impossible, only then disclose the client's perjury to the court. Model Rule 3.3 cmt. 11. "It is for the court then to determine what should be done -- making a statement about the matter to the trier of fact, ordering a mistrial, or perhaps nothing." Id. In summary, the candor towards the tribunal provisions of Texas Rule 3.03 are, in large part, generally similar to the language of Model Rule 3.3.

3.3:102      Model Code Comparison

Disciplinary Rule 7-102 of Canon 7 ("DR 7-102") of the ABA's Model Code of Professional Responsibility is similar in many respects to Texas Rule 3.03 and Model Rule 3.3. However, DR 7-102 is not limited to the lawyer's duty of candor towards a tribunal; rather, it also discusses a lawyer's duty not to file suit for harassment purposes and not to counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent. DR 7-102(A)(1)&(7). There was no counterpart in the Model Code to Texas Rule 3.03(a)(3).

3.3:200   False Statements to a Tribunal

Primary Texas References: TX Rule 3.03(a)
Background References: ABA Model Rule 3.3(a)(1) & (2), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 180, Wolfram § 12.5

Texas Rule 3.03 provides that lawyer shall not knowingly "make a false statement of material fact or law to a tribunal" or "fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act." Texas Rules Rule 3.03(a)(1)-(2). The official comment to Rule 3.03 observes that an "advocate is responsible for pleadings and other documents prepared for litigation, but it is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer." Id. cmt.2. In a federal bankruptcy court case, the court held that intentional filing of a false attorney fee application or other pleadings constituted a violation of a lawyer's obligation of candor to the court and the lawyer's fiduciary obligation to the bankruptcy estate. In re MFlex Corp., 172 B.R. 854 (Bankr. W.D. Tex. 1994). The Fifth Circuit concluded in another case that a lawyer violated the Texas Rules by presenting declarations in a form that implicitly and falsely represented to the court that signed declarations were on file, urging the court to rely on those declarations, and preparing signatures on the declarations to make it appear that they had been signed. American Airlines, Inc. v. Allied Pilots Ass'n, 968 F.2d 523 (5th Cir. Tex. 1992). In a 1991 Texas Ethics Opinion, the Ethics Committee reasoned that an attorney is required under Texas Rules 1.05 and 3.03 to make a good faith effort to persuade a former client to authorize the attorney to reveal evidence which was not known by the attorney during the bankruptcy proceeding, and which might have affected the court's decision. The committee further reasoned that if the lawyer was unsuccessful in his efforts, the lawyer was obligated to disclose evidence to the court. Texas Ethics Opinion 480 (June 1991); see also Texas Ethics Opinion 473 (June 1991).

3.3:300   Disclosure to Avoid Assisting Client Crime or Fraud

Primary Texas References: TX Rule 3.03(a)(2)
Background References: ABA Model Rule 3.3(a)(2), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 180, Wolfram §

Texas Rule 3.03 provides that a lawyer shall not knowingly fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; further, a lawyer shall not knowingly make a false statement of law to a tribunal. Texas Rules Rule 3.03(a)(1) & (4). Under this standard, a lawyer need not disclose unhelpful legal decisions from, for instance, other jurisdictions, but must disclose directly adverse authority issued by the controlling jurisdiction. Ibarra v. State, 782 S.W.2d 234 (Tex. App.—Houston [14th Dist.] 1989, no writ).

3.3:310      Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

For a discussion of this subject, see section 3.3:300.

3.3:400   Disclosing Adverse Legal Authority

Primary Texas References: TX Rule 3.03(a)(4)
Background References: ABA Model Rule 3.3(a)(3), Other Jurisdictions
Commentary: ABA/BNA § 4:301, ALI-LGL § 171, Wolfram § 12.8

Texas Rule 3.03 provides that a lawyer shall not knowingly fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; further, a lawyer shall not knowingly make a false statement of law to a tribunal. Texas Rules Rule 3.03(a)(1) & (4). Under this standard, a lawyer need not disclose unhelpful legal decisions from, for instance, other jurisdictions, but must disclose directly adverse authority issued by the controlling jurisdiction. Ibarra v. State, 782 S.W.2d 234 (Tex. App.—Houston [14th Dist.] 1989, no writ).

3.3:500   Offering False Evidence

Primary Texas References: TX Rule 3.03(a)(5)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL §§ 175-180, Wolfram §§ 12.3, 12.43, 12.5

Texas Rule 3.03 prohibits lawyers from knowingly offering or using evidence that the lawyer knows to be false. Texas Rules Rule 3.03(a)(5). "If a lawyer has discovered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence." Texas Rules Rule 3.03(b) (emphasis added). "If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts." Id. The duty to take remedial steps, if present, continues until remedial legal measures are no longer reasonably possible. Texas Rules Rule 3.03(c).

The rule thus distinguishes between anticipated false evidence and past false evidence.

The official comments to Texas Rule 3.03 offer these guidelines regarding anticipated false evidence:

On occasion a lawyer may be asked to place in evidence testimony or other material that the lawyer knows to be false. Initially in such situations, a lawyer should urge the client or other person involved to not offer false or fabricated evidence. However, whether such evidence is provided by the client or by another person, the lawyer must refuse to offer it, regardless of the client's wishes.

If the request . . . came from the lawyer's client, the lawyer also would be justified in seeking to withdraw from the case. If withdrawal is allowed by the tribunal, the lawyer may be authorized . . . to reveal the reasons for that withdrawal to any other lawyer subsequently retained by the client in the matter; but normally that rule would not allow the lawyer to reveal that information to another person or to the tribunal.

Texas Rules Rule 3.03 cmts.5-6 (citations omitted).

"If the lawyer either chooses not to withdraw or is not allowed to do so by the tribunal, the lawyer should again urge the client not to offer false testimony or other evidence and advise the client of the steps the lawyer will take if such false evidence is offered." Id. cmt.6. "Even though the lawyer does not receive satisfactory assurances that the client or other witness will testify truthfully as to a particular matter, the lawyer may use that person as a witness as to other matters that the lawyer believes will not result in perjured testimony." Texas Rules Rule 3.03 cmt. 6

If a lawyer learns only after the fact that his client has offered false testimony to the tribunal, the lawyer is obligated under the Texas Rules to try to persuade the client to correct the false testimony or to withdraw the false evidence. If the persuasion is ineffective, the lawyer is obligated to take additional remedial measures. See id. cmt.7.

3.3:510      False Evidence in Civil Proceedings

For discussion of this subject matter, please see 3.3:400.

3.3:520      False Evidence in Criminal Proceedings

For general discussion of false evidence in cases, please see 3.3:400. Texas Rules Rule 3.03 itself does not explicitly distinguish between criminal and civil matters. However, Official Comments 9-12 to Rule 3.03 do focus on the criminal context. According to comment 12, a criminal lawyer "must take reasonable remedial" steps "which may include revealing the client's perjury." Id. cmt.12. The comment reasons that a "criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. However, an accused should not have a right," in the view of this comment 12, "to assistance of counsel in committing perjury." Id. "Furthermore, an advocate has an obligation" according to comment 12, "not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence." Id.

3.3:530      Offering a Witness an Improper Inducement

Texas Rules Rule 3.04(b) generally prohibits a lawyer from paying, offering to pay, or acquiescing in the offer or payment of compensation to a witness or other entity contingent upon the testimony of the witness or the outcome of the case. The rule permits, however, a lawyer to advance, guarantee, or acquiesce in the payment of:

expenses reasonably incurred by a witness in attending or testifying;

reasonable compensation to a witness for his loss of time in attending or testifying; and

a reasonable fee for the professional services of an expert witness.

Texas Rules Rule 3.04(c).

3.3:540      Interviewing and Preparing Witnesses

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

3.3:600   Remedial Measures Necessary to Correct False Evidence

Primary Texas References: TX Rule 3.03(b)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:401 et seq., ALI-LGL § 117A-B, Wolfram §§ 12.5, 12.6, 13.3.6

"If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts." Texas Rules Rule 3.03(b). Nor shall a lawyer knowingly "make a false statement of fact or law to a tribunal" or "fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act." Texas Rules Rule 3.03(a). "The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible." Texas Rules Rule 3.03(c).

3.3:610      Duty to Reveal Fraud to the Tribunal

For a discussion of this subject, see section 3.3:600.

3.3:700   Discretion to Withhold Evidence Believed to Be False

Primary Texas References: TX Rule 3.03
Background References: ABA Model Rule 3.3(c), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 180, Wolfram § 12.5

For a general discussion of this subject matter, see 3.3:200 and 3.3:400-3.3:800. The issue can be particularly challenging in criminal cases, since a criminal defendant generally has a right to testify whether or not the defendant's lawyer thinks it is a good idea. See generally Texas Rules Rule 3.03 cmts.9-12, esp. 10 (noting "the right of a defendant to take the stand should he so desire, even over the objections of the lawyer").

3.3:800   Duty of Disclosure in Ex Parte Proceedings

Primary Texas References: TX Rule 3.03(a)(3)
Background References: ABA Model Rule 3.3(d), Other Jurisdictions
Commentary: ABA/BNA § , ALI-LGL § 172 , Wolfram § 12.7

"Ex parte" proceedings are adversary proceedings in which only one party is before the court, and the other party thus is not in a position to defend itself during the proceedings immediately at hand. In such proceedings, Texas Rule 3.03 recognizes a heightened duty of factual disclosure to the tribunal owed by a lawyer present at such a proceeding: "A lawyer shall not knowingly in an ex parte proceeding fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision." Texas Rules Rule 3.03(a)(3) (emphasis added).

3.4   Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 3.04
Background References: ABA Model Rule 3.4, Other Jurisdictions
Commentary:

3.4:101      Model Rule Comparison

Texas Rule 3.04 is derived primarily from ABA Model Rule 3.4, but contains several differences.

Paragraph (a): Treatment of Evidence

ABA Model Rule 3.4(a), unlike Rule 3.04(a), does not require that the lawyer act "in anticipation of a dispute" to commit a disciplinary violation. See Texas Rules Rule 3.04(a). The "in anticipation of a dispute" standard turns on a lawyer's subjective belief that litigation is likely. Id. It does not require that either the lawyers knows of a pending proceeding–or even the existence of such a proceeding–as long as the lawyer anticipated that a proceeding would be instituted and his conduct was otherwise unlawful. Robert P. Schuwerk and John F. Sutton, Jr., A Guide to the Texas Disciplinary Rules of Professional Conduct, 27A Hous. L. Rev. 1, 273 (1990).

Model Rule 3.4(a) prohibits such conduct with respect to "material having potential evidentiary value," while the Texas Rule applies to material "that a competent lawyer would believe has potential or actual evidentiary value." See Texas Rules Rule 3.04(a). A lawyer need not know the evidentiary value of the material if a competent lawyer would have recognized that fact. Robert P. Schuwerk and John F. Sutton, Jr., A Guide to the Texas Disciplinary Rules of Professional Conduct, 27A Hous. L. Rev. at 275.

Paragraph (b): Falsifying or Counseling a Witness to Falsify Evidence

Paragraph (b) of Texas Rule 3.04 prohibits a number of activities that would interfere with the search for truth. The first prohibited activity is falsifying evidence. Counseling or assisting a witness to testify falsely is the second activity prohibited by Texas Rule 3.04(b). Both activities–falsifying evidence and counseling or assisting a witness to testify falsely–are prohibited by the Model Rule 3.4(b).

Texas Rule 3.04(b) also prohibits improper compensation of witnesses. The Model Rules address this issue merely by forbidding a lawyer to "offer an inducement to a witness that is prohibited by law." See Model Rules Rule 3.4(b). This prohibition "clearly precludes illegal payments to witnesses for crimes, such as bribery, subornation of perjury, and obstruction of justice." Robert P. Schuwerk and John F. Sutton, Jr., A Guide to the Texas Disciplinary Rules of Professional Conduct, 27A Hous. L. Rev. at 280. But it does not address other "forms of payments to witnesses that, while . . . likely to lead to false testimony, are not inherently unlawful." Id.

Texas Rule 3.04(b) "addresses those concerns by modifying the Model Rule to prohibit a lawyer from paying, offering to pay, or acquiescing in the offer of payment of compensation to a witness or other entity contingent upon either the content of the testimony of the witness or the outcome of the case." It also specifically permits particular forms of compensation– reimbursement of reasonable expenses in attending or testifying, reasonable compensation for time lost in attending or testifying, and a reasonable fee for professional services of an expert witness. Robert P. Schuwerk and John F. Sutton, Jr., A Guide to the Texas Disciplinary Rules of Professional Conduct, 27A Hous. L. Rev. at 281.

Paragraph (c): Other Prohibited Activities

Subparagraph (c)(1) prohibits a lawyer from "habitually" violating any rule or procedure or evidence. The provision has no direct counterpart in the Model Rules. It may represent a specific application of Model Rule 3.4(c)'s prohibition against a lawyer "knowingly disobey[ing] an obligation under the rules of a tribunal." See Model Rules Rule 3.4(c). Additionally, Model Rule 3.4(d) may also be a specific application of Texas Rule 3.04(c)(1), since it forbids frivolous discovery requests and the failure to respond to legitimate discovery.

Subparagraph (c)(2) of Texas Rule 3.04 prohibits a lawyer from stating or alluding to any matter that the lawyer does not reasonably believe is relevant to the proceeding in question. The subparagraph is only slightly different from Model Rule 3.4(e).

Subparagraph (c)(3) provides that a lawyer "may argue on his analysis of the evidence and other permissible considerations for any position or conclusion with respect to the matters . . . ." See Texas Rules Rule 3.04(c)(3). This subparagraph restates the traditional Texas position regarding the proper role of argument and comment in litigation. See Texas Rules Rule 3.04 cmt. 4. This subparagraph has no direct Model rule counterpart. Compare Model Rules Rule 3.4(e).

Subparagraph (c)(4) prohibits a lawyer from asking a lawyer "any question intended to degrade a witness or other person except [when] the lawyer reasonably believes that the question will lead to relevant and admissible evidence." See Texas Rules Rule 3.04(c)(4). This provision has no direct Model rule counterpart. Compare Model Rules Rule 3.4(e).

Subparagraph (c)(5) provides that a lawyer may not engage in conduct intended to disrupt the proceeding. See Texas Rules Rule 3.04(c)(5). "Refraining from disruptive conduct is a corollary of the lawyer's right to be a zealous advocate on behalf of his clients. See Texas Rules Rule 3.04 cmt. 5. This rule also has no direct Model Rule 3.4 counterpart, but is covered by Model Rule 3.5(c).

Paragraph (d): Obedience to Tribunal.

Texas Rule 3.04(d) addresses a lawyer's responsibilities to follow standing rules of a tribunal and particular orders of that tribunal. The Rule generally requires that lawyers follow the rules and orders themselves and advise their to do the same.

There are two specific exceptions to Texas Rule 3.04(d). In both cases, the lawyer must openly acknowledge his client's noncompliance. See Texas Rules Rule 3.04 cmt. 6. The first exception is the lawyer's open refusal based on an assertion that no valid obligation exists. Under the Model Rules, "an open refusal based on an assertion that no valid obligation exists" is the only permissible exception to the prohibition against violating "the rules of a tribunal." See Model Rules Rule 3.4(c).

The second circumstance cited by Texas Rule 3.04(d) is that the lawyer may acquiesce in the client's disobedience based on the client's willingness to accept any sanctions arising from the noncompliance. See Texas Rules Rule 3.04 cmt. 7.

Paragraph (e): Requesting Non-Client to Withhold Information from Another Party

Texas Rule 3.04(e) limits the "circumstances in which a lawyer can request a person other than the client voluntarily to refrain from giving relevant information to another party." Robert P. Schuwerk & John F. Sutton, Jr., A Guide to the Texas Disciplinary Rules of Professional Conduct, 27A Hous. L.Rev. at 291-92. Under this rule, such conduct is permissible only if the person is a relative, an employee, or other agent of the client, and the lawyer reasonably believes the person's interests will not be adversely affected by that course. This Rule is taken from Model Rule 3.4(f).

For an interesting case involving attacks on the integrity of counsel, see Amelia's Automotive, Inc. v. Rodriguez, 921 S.W.2d 767 (Tex. App.—San Antonio 1996, no writ).

3.4:102      Model Code Comparison

Paragraph (a): Treatment of Evidence

DR 7-109 of the Model Code provided that a lawyer "shall not suppress any evidence that he or his client has a legal obligation to reveal." See ABA Model Code DR 7-109. This standard is substantially similar to the standard in Texas Rule 3.04, except that unlike Texas Rule 3.04(a), it does not address the treatment of evidence "in anticipation of a dispute." Texas Rule 3.04(a) also imports a negligence standard concerning the alteration, destruction, or concealment of evidence not found in its Model Code counterpart. Under Texas Rule 3.04(a), a lawyer must act reasonably with respect to documents or material having potential or actual evidentiary value.

The Model Code DR 7-109(B) also provides that a "lawyer shall not advise or cause a person or secrete himself or to leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness therein." See ABA Model Code DR 7-109(B). This obligation is not explicitly recognized in Texas Rule 3.04(a).

Paragraph (b): Falsifying or Counseling Witness to Falsify Evidence

Texas Rule 3.04(b) substantially follows its Model Code counterparts. The first part of Texas Rule 3.04(b) which provides that a lawyer shall not "falsify evidence, counsel or assist a witness to testify falsely" is similar to the language of DR 7-102(A)(6). Model Code DR 7-102(A)(6) provides that a lawyer shall not "participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false." See ABA Model Code DR 7-102(A)(6).

The second part of Rule 3.04(b) which addresses the compensation of witnesses follows the language of DR 7-109(C). DR 7-109 not only prohibits the payment of compensation to witnesses contingent upon the content of their testimony or the outcome of the case, it, like Rule 3.04(b), also lists the instances where payment of compensation to witnesses is permissible.

Paragraph (c): Other Prohibited Activities

Subparagraph (c)(1) prohibits a lawyer from "habitually" violating any rule of procedure or evidence. The rule derives from Model Code DR 7-106(C)(7) which provided that a lawyer could not "intentionally or habitually" violate established rules of procedure or evidence. See ABA Model Code DR 7-106(C)(7).

Subparagraph (c)(2) is addressed by two provisions of the Model Code. First, it prohibits a lawyer from referring to matters that the lawyer does not reasonably believe are relevant to the proceedings. This provision derives from Model Code DR 7-106(C)(1) and contains nearly identical language. Second, Rule 3.04(c)(2) also provides that the lawyer may not "assert personal knowledge of facts in issue except when testifying as a witness." See Texas Rules Rule 3.04(c)(2). The restriction derives from and uses substantially similar language to DR 7-106(C)(3).

Subparagraph (c)(3) carries forward a prohibition against a lawyer stating a personal opinion concerning certain enumerated matters. A lawyer is still permitted to argue his analysis of the evidence. This provision derives from Model Code DR 7-106(C)(4). It is similarly worded.

Subparagraph (c)(4) prohibits a lawyer from asking questions with the intention to degrade a witness or other person except "where the lawyer reasonably believes that the question will lead to relevant and admissible evidence." See Texas Rules Rule 3.04(c)(4). This rule derives substantially from DR 7-106(C)(2). The Model Code prohibition is narrower because it only requires that the evidence be "relevant to the case," while Rule 3.04(c)(4) mandates that the question lead to "relevant and admissible evidence."

Subparagraph (c)(5) prohibits a lawyer from engaging in disruptive conduct. DR 7-106(C)(6) prohibits a lawyer from engaging in "undignified or discourteous conduct which is degrading to a tribunal." See ABA Model Code DR 7-106(C)(6). The Model Code provision is broader because it includes conduct that not only disrupts a tribunal, but also conduct which may tend to disrupt or degrade a tribunal.

Paragraph (d): Obedience to Tribunal

This paragraph addresses a lawyer's responsibility to follow the standing rules of a tribunal and particular orders of that tribunal. Rule 3.04(d) requires that lawyers follow the rules and advise their clients to do the same. This Rule derives from DR 7-106(A) which provides that a lawyer shall not "disregard or advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding . . . ." See ABA Model Code DR 7-106(A). The Model Code provision contains the general exception that the lawyer "may take appropriate steps in good faith to test the validity of such rule or ruling." Id.

Rule 3.04(d) provides two specific exceptions for a lawyer's disregarding or advising a client to disregard the standard rules of a tribunal. The first is for an "open refusal" based either on an assertion that no valid obligation exists. The second is for an "open refusal" based on the client's willingness to accept any sanctions arising from such disobedience. Arguably, these exceptions are special cases of the Model Code exception.

Paragraph (e): Requesting Non-Client to Withhold Information From Another Party

This Rule has no direct Model Code counterpart. The most equivalent Model Code provision is DR 7-104(A)(2). DR 7-104(A)(2) provides that a lawyer shall not give "advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interest of such person are or have a reasonable possibility of being in conflict with the interests of his client." This Rule also incorporates DR 7-109(A) which provides that a "lawyer shall not suppress any evidence that he or his client has a legal obligation to reveal or produce" and DR 7-109(B) which provides that a "lawyer shall not advise or cause a person to secrete himself or to leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness therein."

3.4:103      Overview

Texas Rule 3.04, "Fairness in Adjudicatory Proceedings," is calculated to promote "[f]air competition in the adversary system" by articulating certain "prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedures, and the like." Texas Rule 3.04 cmt. 1. The subject matter of Texas Rule 3.04 is further addressed in immediately preceding and following sections.

See sections 3.4:101 and 3.4:102 and following sections addressing Texas Rule 3.04, "Fairness in Adjudicatory Proceedings."

3.4:200   Unlawful Destruction and Concealment of Evidence

Primary Texas References: TX Rule 3.04(a)
Background References: ABA Model Rule 3.4(a), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL §§ 178, 179, Wolfram § 12.3, 12.4

Subparagraph (a) of Texas Rules Rule 3.04 provides that a lawyer shall not "unlawfully obstruct another party's access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act." Official comment 2 to Texas Rule 3.04 further observes that "[a]pplicable law in many jurisdictions, including Texas, makes it an offense to destroy material for the purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen." Texas Rules Rule 3.04 cmt. 2 (citations omitted). Of course, a lawyer for a client may properly object to the production of documents or other evidence on grounds including relevancy and privilege, including without limitation the attorney-client privilege and the work product doctrine. Indeed, Texas Rule 1.05 and other law presuppose such proper objections to discovery in litigation.

3.4:210      Physical Evidence of Client Crime

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

3.4:300   Falsifying Evidence

Primary Texas References: TX Rule 3.04(a)
Background References: ABA Model Rule 3.4(b), Other Jurisdictions
Commentary: ABA/BNA §§ 61:601, 61:701, ALI-LGL § 178, Wolfram § 12.3

Texas Rule 3.04(a) provides that a lawyer shall not "unlawfully obstruct another party's access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act." Texas Rule 3.04(a). Nor shall a lawyer "falsify evidence, counsel or assist a witness to testify falsely," or make improper inducements (see section 3.4:310) to witnesses. See Resolution Trust Corp. v. Bright, 6 F.3d 336 (5th Cir.  1993) (holding that actions of attorneys in persistently and aggressively presenting their theory of the case to witness and requested that she sign an affidavit which made changes in statement she had initially made was not equivalent to attempt to induce witness to testify falsely where lawyers did not hide from witness that statements were included in draft affidavits which had not been discussed with her earlier, brought these statements to her attention, warned her to read carefully, and lawyers were advocates who did not claim to be neutral).

3.4:310      Prohibited Inducements

A lawyer of course cannot properly pay a witness to testify in a certain way. Not all compensation to witnesses or potential witnesses is prohibited, however. Paragraph (b) of Texas Rule 3.04 provides in full:

(b)   falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the witness or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of:

(1)   expenses reasonably incurred by a witness in attending or testifying;

(2)   reasonable compensation to a witness for his loss of time in attending or testifying;

(3)   a reasonable fee for the professional services of an expert witness.

Texas Rules Rule 3.04(b); see also Texas Ethics Opinion 458 (considering lawyer participation in client entering into contingency fee agreement with a medical-legal consulting firm which provides services, including providing of expert testimony).

3.4:400   Knowing Disobedience to Rules of Tribunal

Primary Texas References: TX Rule 3.04(d)
Background References: ABA Model Rule 3.4(c), Other Jurisdictions
Commentary: ABA/BNA § 61:1231, ALI-LGL § 165, Wolfram § 12.1

Texas Rule 3.04 recognizes that a lawyer has a general obedience duty to the tribunal. This duty is somewhat tempered, however, by the lawyer's duty to zealously represent the client's interest. These potentially conflicting duties are reconciled in subparagraph (d) of Texas Rule 3.04, which provides that a lawyer shall not "knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client's willingness to accept any sanctions arising from such disobedience." Texas Rules Rule 3.04(d) (emphasis added).

3.4:500   Fairness in Pretrial Practice

Primary Texas References: TX Rule 3.02
Background References: ABA Model Rule 3.4(d), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL § 166, Wolfram § 12.4

The Texas version of Model Rule 3.4, Texas Rule 3.04, does not contain the Model Rule language forbidding a lawyer "in pretrial procedure" from making "a frivolous discovery request" or failing "to make reasonably diligent effort to comply with the legally proper discovery request by an imposing party[.]" Model Rules Rule 3.4. Texas Rule 3.02 does, however, provide that, "[i]n the course of litigation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or that it unreasonably delays resolution of the matter." Texas Rules Rule 3.02.

3.4:600   Improper Trial Tactics

Primary Texas References: TX Rule 3.04(c)
Background References: ABA Model Rule 3.4(e), Other Jurisdictions
Commentary: ABA/BNA § 61:1361, ALI-LGL § 167, Wolfram § 12.1

Paragraph (c) of Texas Rule 3.04 forbids Texas lawyers from engaging in certain trial tactics:

[e]xcept as stated in paragraph (d), in representing a client before a tribunal [a lawyer shall not]:

(1)   habitually violate an established rule of procedure or of evidence;

(2)   state or allude to any matter that the lawyer does not reasonably believe is relevant to such proceeding or that will not be supported by admissible evidence, or assert personal knowledge of facts in issue except when testifying as a witness;

(3)   state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused, except that a lawyer may argue on his analysis of the evidence and other permissible considerations for any position or conclusion with respect to the matters stated herein;

(4)   ask any question intended to degrade a witness or other person except where the lawyer reasonably believes that the question will lead to relevant and admissible evidence; or

(5)   engage in conduct intended to disrupt the proceedings.

Texas Rules Rule 3.04(c).

Paragraph (d) in turn provides that a lawyer shall not "knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal for an open refusal based either on an assertion that no valid obligation exists or on the client's willingness to accept any sanctions arising from such disobedience." Texas Rules Rule 3.04(d) (emphasis added).

The obligations in paragraph (c) are designed to avoid introduction of "irrelevant or improper considerations into the deliberative process," as well as "abusive or disruptive conduct." Texas Rules Rule 3.04 cmts. 4 and 5.

3.4:700   Advising Witness Not to Speak to Opposing Parties

Primary Texas References: TX Rule 3.04(e)
Background References: ABA Model Rule 3.4(f), Other Jurisdictions
Commentary: ALI-LGL § 176, Wolfram § 12.4.2

As a general matter, the Texas Rules recognize that a lawyer should not request a person other than a client to refrain from voluntarily giving information to another party unless "(1) the person is a relative or employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information." Texas Rules Rule 3.04(e). So-called "Mary Carter" agreements have been held void and against public policy in Texas. See Elbaor v. Smith, 845 S.W.2d 240 (Tex. 1992); see also State Farm Fire and Casualty Co. v. Gandy, 925 S.W.2d 696 (Tex. 1996).

3.5   Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rules 3.05 & 3.06
Background References: ABA Model Rule 3.5, Other Jurisdictions
Commentary:

3.5:101      Model Rule Comparison

Model Rule 3.5, "Impartiality and Decorum of the Tribunal," provides that a lawyer shall not "(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such person except as permitted by law; or (c) engage in conduct intended to disrupt a tribunal." The Texas Rules address this subject in two separate rules: Texas Rule 3.05 ("Maintaining Impartiality of Tribunal," and Texas Rule 3.06 ("Maintaining Integrity of Jury System"). The substance of paragraph (a) of the Model Rule is covered with respect to tribunals by paragraph (a) of Texas Rule 3.05, and with respect to jurors or potential jurors by paragraph (a) of Texas Rule 3.06.

The ex parte contacts provision of Model Rule 3.5(b) is addressed in the Texas Rules with respect to tribunals by Texas Rule 3.05(b), and with respect to jurors or potential jurors by paragraphs (b) through (e) of Texas Rule 3.06. Paragraph (c) of the Model Rule is addressed by paragraph (c)(5) of Texas Rule 3.04, "Fairness in Adjudicatory Proceedings," which provides in pertinent part that a lawyer shall not "engage in conduct intended to disrupt the proceedings." Texas Rules 3.05 and 3.06 are more detailed than Model Rule 3.5, providing definitions of the terms "matter" and "pending," and elaborating in somewhat greater detail on the types of contacts that are permissible and impermissible. These matters are further addressed in the immediately following sections.

3.5:102      Model Code Comparison

The Model Rules cover ex parte contacts with judges in DR 7-109(C) and with jurors in DR 7-108(A) and (B). DR 7-106(C)(6) in turn provides that a lawyer shall not "engage in undignified or discourteous conduct which is degrading to a tribunal." Again the provisions of Texas Rules 3.04, 3.05, and 3.06 tend to be more detailed.

3.5:200   Improperly Influencing a Judge, Juror, or Other Court Official

Primary Texas References: TX Rules 3.05 & 3.06
Background References: ABA Model Rule 3.5(a), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 101:702, ALI-LGL §§ 173, 175, Wolfram §§ 11.3, 11.4

Texas provisions against improperly influencing judges are treated in section 3.5:210; roughly analogous provisions regarding jurors are treated in section 3.5:220. Provisions regarding ex parte communications with judges and jurors are addressed in section 3.5:300. Two Texas Rules are particularly pertinent here: Texas Rule 3.05, "Maintaining Impartiality of Tribunal," and Texas Rule 3.06, "Maintaining Integrity of Jury System."

3.5:210      Improperly Influencing a Judge

Paragraph (a) of Texas Rule 3.05, "Maintaining Impartiality of Tribunal," states simply that a lawyer shall not "seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure . . . ." Texas Rule 3.05(a). The official comment is not much more illuminating, observing that "[m]any forms of improper influence upon tribunals are proscribed by criminal law or by applicable rules of practice or procedure. Others are specified in the Texas Code of Judicial Conduct." Texas Rules Rule 3.05 cmt. 1. For instance, bribing a judge is, of course, improper conduct. On the other hand, several Texas judicial refusal or disqualification cases have noted the propriety of lawyer campaign contributions to judicial candidates.

Communications with a judge ex parte (i.e., without the presence or knowledge of opposing counsel) are addressed in section 3.5:300.

3.5:220      Improperly Influencing a Juror

"To safeguard the impartiality that is essential to the judicial process, veniremen and jurors should be protected against extraneous influences. When impartiality is present, public confidence in the judicial system is enhanced." Texas Rules Rule 3.06 cmt. 1. Accordingly, paragraph (a) of that rule provides that a lawyer shall not "conduct or cause another, by financial support or otherwise, to conduct a vexatious or harassing investigation or a venireman or juror," or "seek to influence a venireman or juror concerning the merits of a pending matter by means prohibited by law or applicable rules of practice or procedure." Texas Rules Rule 3.06(a). Improper communications with jurors are addressed in section 3.5:300.

3.5:300   Improper Ex Parte Communication

Primary Texas References: TX Rules 3.05 & 3.06
Background References: ABA Model Rule 3.5(b), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 61:903, ALI-LGL § 172, Wolfram § 11.3.3

A.   Ex Parte Contacts with Judges

Ex parte contacts (e.g., contacts made outside the presence or without the knowledge of opposing counsel) with judges are addressed in paragraph (b) of Texas Rule 3.05, "Maintaining Impartiality of Tribunal." Paragraph (b) provides in full as follows:

(b)   except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter other than:

(1)   in the course of official proceedings in the cause;

(2)   in writing if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not represented by a lawyer;

(3)   orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.

Texas Rules Rule 3.05(b).

In this connection, the Texas Supreme Court has held that affidavits to establish a claim of privilege from discovery should not be tendered for ex parte consideration. Remington Arms Co., Inc. v. Canales, 837 S.W.2d 624 (Tex. 1992). For another case involving alleged "ex parte" contact with the court, see Matter of J.B.K., 931 S.W.2d 581 (Tex. App.—El Paso 1996, no writ).

B.   Ex Parte Contacts with Jurors

Ex parte contacts with jurors are addressed in paragraphs (b) through (e) of Texas Rule 3.06, "Maintaining Integrity of Jury System," as follows:

(b)   Prior to discharge of the jury from further consideration of a matter, a lawyer connected therewith shall not communicate with or cause another to communicate with anyone he knows to be a member of the venire from which the jury will be selected or any juror or alternate juror, except in the course of official proceedings.

(c)   During the trial of a case, a lawyer not connected therewith shall not communicate with or cause another to communicate with a juror or alternate juror concerning the matter.

(d)   After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.

(e)   All restrictions imposed by this Rule upon a lawyer also apply to communications with or investigations of members of a family of a venireman or a juror.

Texas Rules Rule 3.06(b)-(e).

In representing a client, a lawyer may, for instance, need to investigate whether a juror or jurors have engaged in misconduct in deliberating with respect to a case. A lawyer may contact a juror after the juror has been discharged, subject to the limitations set forth in Texas Rule 3.06. Comments 1 and 2 to Texas Rule 3.06 elaborate:

1.   To safeguard the impartiality that is essential to the judicial process, veniremen and jurors should be protected against extraneous influences. When impartiality is present, public confidence in the judicial system is enhanced. There should be no extrajudicial communication with veniremen prior to trial or with jurors during trial or on behalf of a lawyer connected with the case. Furthermore, a lawyer who is not connected with the case should not communicate with or cause another to communicate with a venireman or a juror about the case. After the trial, communication by a lawyer with jurors is not prohibited by this Rule so long as he refrains from asking questions or making comments that tend to harass or embarrass the juror or to influence actions of the juror in future cases. Contacts with discharged jurors, however, are governed by procedural rules the violation of which could subject a lawyer to discipline under Rule 3.04. When an extrajudicial communication by a lawyer with a juror is permitted by law, it should be made considerately and with deference to the personal feelings of the juror.

2.   Vexatious or harassing investigations of jurors seriously impair the effectiveness of our jury system. For this reason, a lawyer or anyone on his behalf who conducts an investigation of veniremen or jurors should act with circumspection and restraint.

Texas Rules Rule 3.06, cmts. 1 & 2.

For an interesting decision discussing a lawyer's first amendment rights to post-discharge communications with jurors versus paragraph (d) of Texas Rule 3.06 (quoted above), see Commission for Lawyer Discipline v. Benton, No. 97-0228, 1998 Tex. LEXIS 121 (Tex. July 14, 1998).

3.5:400   Intentional Disruption of a Tribunal

Primary Texas References: TX Rule 3.04(c)(5)
Background References: ABA Model Rule 3.5(c), Other Jurisdictions
Commentary: ABA/BNA § 61:901, ALI-LGL § 165, Wolfram § 12.1.3

Paragraphs (c)(5) of Texas Rule 3.04, "Fairness in Adjudicatory Proceedings," provides that, except as stated in paragraph (d) of the rule, a lawyer representing a client before a tribunal shall not "engage in conduct intended to disrupt the proceedings." Texas Rules Rule 3.04(c)(5). Comment 5 to the rule observes that "[r]efraining from abusive or disruptive conduct is a corollary of the advocate's right to speak on behalf of litigants. A lawyer may stand firm against abuse by a tribunal but should avoid reciprocation." Texas Rules Rule 3.04, cmt. 5.

Paragraph (d) of Texas Rule 3.04 in turn provides that a lawyer shall not "knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client's willingness to accept any sanctions arising from such disobedience." Texas Rules Rule 3.04(d).

3.6   Rule 3.6 Trial Publicity

3.6:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 3.07
Background References: ABA Model Rule 3.6, Other Jurisdictions
Commentary:

3.6:101      Model Rule Comparison

Texas Rule 3.07, "Trial Publicity," is patterned after but not identical to the Model Rule of the same name. These rules seek to regulate a lawyer's freedom to speak to (or inject discussion into) the public media regarding pending adjudicatory proceedings -- but the rules strive to frame the regulation in a way that will not violate the First Amendment's protection of the free exercise of expression.

Paragraph (a) of the Texas Rule roughly follows paragraph (a) of the Model Rule, and adds that a lawyer "shall not counsel or assist another person to make such a statement" that would violate the rule. Paragraph (c) of the Texas Rule identifies a nonexhaustive list of types of extrajudicial statements that ordinarily will not violate the rule. In this regard, paragraph (c) of the Texas Rule parallels but is not identical to paragraph (b) of the Model Rule. Paragraph (b) of the Texas Rule provides a nonexhaustive list of statement types that ordinarily will violate the rule. The text of Model Rule 3.6 does not contain an analogous provision, but provides some generally similar guidance in the Comment to the Model Rule.

Paragraph (c) of the Model Rule acknowledges that a lawyer may need to respond to adverse publicity regarding the lawyer's client, and strives to outline circumstances in which such a response may be appropriate, as well as the permissible scope of such a response. The text of Texas Rule 3.07 does not expressly include an analogous provision. Likewise, Texas Rule 3.07 does not contain a provision analogous paragraph (d) of the Model Rule: "No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a)." Model Rules Rule 3.6(d). Paragraph (a) of the Texas Rule does provide, however, that a lawyer shall not counsel or assist another person to make a statement that would violate the Texas Rule if the lawyer made it herself.

For a Texas case considering the applicability of the rule to district attorneys, see Wilson v. State, 854 S.W.2d 270 (Tex. App.—Amarillo 1993, writ ref'd).

3.6:102      Model Code Comparison

DR 7-107 addressed this subject matter but differs in significant respects from Texas Rule 3.07 and Model Rule 3.6.

3.6:200   Improper Extrajudicial Statements

Primary Texas References: TX Rule 3.07(a) & (b)
Background References: ABA Model Rule 3.6(a), Other Jurisdictions
Commentary: ABA/BNA § 61:1001, ALI-LGL § 169, Wolfram § 12.2

Paragraph (a) of Texas Rule 3.07, "Trial Publicity," provides that, "[i]n the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement." Texas Rule 3.07(a). In an effort to clarify the rule, paragraph (b) provides a nonexhaustive list of types of extrajudicial statements likely to violate paragraph (a). (Paragraph (c) of Texas Rule illustrates examples of types of statements that ordinarily will not violate paragraph (c) of Texas Rule 3.06. These are addressed in section 3.6:300.)

Paragraph (b) provides in full:

A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases if the adjudication is ongoing or imminent, by making an extrajudicial statement of the type referred to in that paragraph when the statement refers to:

(1)   the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness; or the expected testimony of a party or witness;

(2)   in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense; the existence or contents of any confession, admission, or statement given by a defendant or suspect; or that person's refusal or failure to make a statement;

(3)   the performance, refusal to perform, or results of any examination or test; the refusal or failure of a person to allow or submit to an examination or test; or the identity or nature of physical evidence expected to be presented;

(4)   any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; or

(5)   information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial.

Texas Rules Rule 3.07(b).

3.6:300   Permissible Statements

Primary Texas References: TX Rule 3.07(c)
Background References: ABA Model Rule 3.6(b), Other Jurisdictions
Commentary: ABA/BNA § 69:1001, ALI-LGL § 169, Wolfram § 12.2

Paragraph (c) of Texas Rule 3.07 illustrates statements that ordinarily will not violate paragraph (a); paragraph (c) provides in full:

A lawyer ordinarily will not violate paragraph (a) by making an extrajudicial statement of the type referred to in that paragraph when the lawyer merely states:

(1)   the general nature of the claim or defense;

(2)   the information contained in a public record;

(3)   that an investigation of the matter is in progress, including the general scope of the investigation, the offense, claim or defense involved;

(4)   except when prohibited by law, the identity of the persons involved in the matter;

(5)   the scheduling or result of any step in litigation;

(6)   a request for assistance in obtaining evidence, and information necessary thereto;

(7)   a warning of danger concerning the behavior of a person involved, when there is a reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

(8)   if a criminal case:

(i)   the identity, residence, occupation and family status of the accused;

(ii)   if the accused has not been apprehended, information necessary to aid in apprehension of that person;

(iii)   the fact, time and place of arrest; and

(iv)   the identity of investigating and arresting officers or agencies and the length of the investigation.

Texas Rules Rule 3.07(c).

3.6:400   Responding to Adverse Publicity

Primary Texas References: TX Rule 3.07
Background References: ABA Model Rule 3.6(c), Other Jurisdictions
Commentary: ABA/BNA § 61:100l, ALI-LGL § 169, Wolfram § 12.2

The text of Texas Rule 3.06 does not appear to explicitly address this subject.

3.7   Rule 3.7 Lawyer as Witness

3.7:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 3.08
Background References: ABA Model Rule 3.7, Other Jurisdictions
Commentary:

3.7:101      Model Rule Comparison

The advocate-witness rule in Texas is similar but not identical to the Model Rule on the subject. The Texas rule focuses to some degree on the likely tenor of the testimony. If the testimony is likely to be unfavorable to the client, the comment to the Texas rule suggests that the client should be permitted to decide whether to waive the potential problem and let the lawyer act as both advocate and witness. The rationale here is that the potential injury is to the lawyer's client, and the opposing party should not be permitted to exploit the situation by disqualifying the lawyer ( and depriving the client of counsel of its choice). Additionally, the Texas rule explicitly provides that, if a lawyer knows it is reasonably likely that he will be a necessary witness for his client, he can properly proceed as both advocate and planned witness if (i) his disqualification would work a substantial hardship on his client, and (ii) he promptly notifies opposing counsel of his intention to testify. The substantial hardship provision is not unique to Texas; the Model Rule has a similar provision. What is unique is the Texas requirement of prompt notification to opposing counsel when the lawyer knows that he is likely to be a necessary witness for his client. The thought here is that a duty of prompt disclosure will prevent the potential advocate-witness from building up potential "hardship" for his client (i.e., by not revealing his potential advocate role until late in the case). Early disclosure also gives the other side the opportunity to assess whether to move for disqualification early in the case — rather than springing such a motion on, for instance, the eve of trial. Last, the Texas rule permits a lawyer in a given firm to act as advocate for a client at trial although another lawyer in his firm may be a witness. The Model Rule has a somewhat similar version, but the Texas rule does not include the Model Rule proviso regarding conflicts. The Model Rule proviso essentially states that a lawyer can act as advocate when another lawyer in his firm may be a witness unless the potentially testifying lawyer has a conflict with the client under either the general conflict rule or the former-client conflict rule.

Both the Texas Rule and the ABA Rule accept the possibility that a lawyer acting as an advocate/witness may confuse the finder of fact by making it difficult to distinguish between whether the lawyer is providing proof on a disputed fact or merely analyzing that proof. Texas Rules Rule 3.08 cmt. 4; Model Rules Rule 3.7 cmt.

Under the Texas rule, a lawyer may be an advocate/witness if the lawyer's testimony relates to an uncontested issue, a mere formality, the value or nature of the lawyer's services, or in any action in which the lawyer is appearing pro se. Texas Rules Rule 3.08(a)(1-4). The Texas rule recognizes that in these circumstances it is unlikely that the opposing party will be prejudiced by the lawyer's dual role. Texas Rules Rule 3.08 cmt. 4-5. Moreover, forcing the client to retain new counsel simply because the first lawyer may testify on an undisputed matter would impose an unnecessary expense on the client.

The Texas rule also permits a lawyer to act as an advocate/witness if finding a new lawyer to represent the client would result in a "substantial hardship" on the client. Texas Rules Rule 3.08(a)(5). The "substantial hardship" exception requires the lawyer to balance the interests of the client with those of the opposing party. Even if the lawyer plans to testify on a significant matter, however, the lawyer may continue to represent the client if—on balance—the hardship to the client if the lawyer does not act as an advocate/witness is greater than the potential prejudice to the opposing party. Plainly, the "substantial hardship" exception could induce a lawyer to ignore the conflict raised by the advocate/witness role. Because of this potential for abuse, the exception requires that the advocate/witness give timely notice to opposing counsel concerning the potential testimony. Texas Rules Rule 3.08(a)(5) & cmt. 7.

The Model Rules also contain specific exceptions to the general prohibition against the lawyer as an advocate/witness. Like the Texas rule, the Model Rule permits a lawyer to testify regarding uncontested issues or attorney fees. Model Rules Rule 3.7(a)(1-2). In addition, the Model Rule includes the "substantial hardship" exception and permits a lawyer to testify when the client's interests would be unfairly prejudiced if the lawyer could not act as an advocate/witness. Model Rules Rule 3.7(a)(3). Unlike the Texas rules, the text of the ABA Rule does not specifically include an exception if the lawyer will testify regarding a mere formality. Instead, the ABA Rule incorporates the "formality" exception into the scope of uncontested issues. Model Rule 3.7 & cmt. The ABA rule does not include the Texas rule's "pro se" exception.

3.7:102      Model Code Comparison

Under the Texas rule, the lawyer's analysis of whether to accept or continue employment is contained in one rule -- Texas Rule 3.08. The Model Code, however, divides this analysis into two parts. ABA Model Code 5-101 sets forth the rule to be followed when a lawyer is analyzing potential employment that may require the lawyer to act as an advocate/witness. ABA Model Code DR 5-102 governs the case in which a lawyer discovers the potential advocate/witness conflict after accepting employment.

The Model Code states that "[a] lawyer shall not accept employment . . . if he knows it is obvious that he or a lawyer in his firm ought to be called as a witness . . . ." ABA Model Code DR 5-101(B). As with the Texas rule, however, a lawyer may act as an advocate/witness under the Model Code if the testimony relates to an uncontested matter, a formality, or attorney's fees. ABA Model Code DR 5-101(B)(1-3). The Model Code does not state an exception to the general rule in cases in which the lawyer is acting pro se.

The Model Code also permits an attorney to act as advocate/witness when the attorney's refusal to continue the representation would "work a substantial hardship on the client." ABA Model Code DR 5-101(B)(4). The "substantial hardship" exception in the Model Code, however, can be distinguished from the Texas Rule in at least two ways. First, the Model Code's substantial hardship test does not--on its face--require the advocate/witness to give timely notice to opposing counsel.

Second, the Model Code uses the phrase "distinctive value".

The ABA Model Code states that a lawyer may continue to represent his client after learning that he or another lawyer in his firm "ought to be called as a witness" on behalf of his client only if the testimony falls under the rule's enumerated exceptions. ABA Model Code DR 5-102(A). Under DR 5-102(A), as soon as the need for the testimony on behalf of the client becomes "obvious," the lawyer "shall withdraw from the conduct of the trial and his firm, if any, shall not continue the representation" unless the probable testimony falls under one of the exceptions stated in DR 5-101(B). "If . . . a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness, other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client." ABA Model Code DR 5-102(B). See FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304 (5th Cir. 1995), for the Fifth Circuit's views on the Texas Model Rule and Model Code versions of the advocate-witness rule.

3.7:200   Prohibition of Advocate as Witness

Primary Texas References: TX Rule 3.08
Background References: ABA Model Rule 3.7(a), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 168, Wolfram § 7.5

The Texas rules recognize that it can be inappropriate in certain cases for a lawyer to act as both an advocate for a party and as a witness in the same case. According to the official comment to Texas Rule 3.08, "[o]ne important variable in this context is the anticipated tenor of the lawyer's testimony." Texas Rules Rule 3.08 cmt.2. A lawyer who believes that he or she will be compelled to furnish testimony substantially adverse to the client should not continue to act as an advocate for the client "except with the client's informed consent, because of the substantial likelihood that such adverse testimony would damage the lawyer's ability to represent the client effectively." Id. at cmt.3. "In all other circumstances, the principal concern over allowing a lawyer to serve as both an advocate and witness for a client is the possible confusion that those dual roles could create for the finder of fact." Texas Rules Rule 3.08 at cmt.4. "Normally those dual roles are unlikely to create exceptional difficulties" when the lawyer's testimony is limited to areas such as the following:

•   an uncontested issue;

•   a matter of formality where there is no reason to believe that substantial evidence will be offered in opposition to the testimony;

•   the nature and value of legal services rendered in the case; or

•   where the lawyer is a party to the action and appearing as counsel on his or her own behalf.

Texas Rules Rule 3.08(a)(1)-(4).

"If, however, the lawyer's testimony concerns a controversial or contested matter, combining the roles of advocate and witness can unfairly prejudice the opposing party." Id. cmt.4. "A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as analysis of the proof." Texas Rules Rule 3.08 cmt. 4.

In summary, if a lawyer expects that he or she will be compelled to furnish testimony that will be substantially adverse to the client, the lawyer shall not continue as an advocate unless the client consents after full disclosure. Texas Rules Rule 3.08(b). In other situations, the lawyer cannot testify unless one or more of the conditions listed above applies (e.g., uncontested issue, matter of formality, nature and value of legal services, or lawyer appearing on own behalf, or "the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client"). Texas Rules Rule 3.08(a).

Parties in litigation sometimes seek to disqualify opposing counsel on the asserted ground that the challenged lawyer is likely to be a witness in the case. Texas courts, like courts in many other jurisdictions, tend to look on such motions with skepticism, because motions of this type are often filed for tactical reasons e.g., to deprive a litigation opponent of that party's freely-chosen counsel. See, e.g., Ayers v. Canales, 790 S.W.2d 554 (Tex. 1990); Spears v. Fourth Court of Appeals, 797 S.W.2d 654 (Tex. 1990). See generally Texas Ethics Opinion 471 (June 1991); Texas Ethics Opinion 468; Texas Ethics Opinion 447. As noted elsewhere, the disqualification rule may be different in federal, rather than state, courts located in Texas. See FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304 (5th Cir. 1995).

In a recent Texas Supreme Court case, Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416 (Tex. 1996), the Texas high court concluded that a lawyer did not violate Texas Rule 3.08 by continuing to draft pleadings, engage in settlement negotiations, or assist with trial strategy after learning that he would probably be called as witness at trial for the company. Further, the Court concluded that, with the client's informed consent, the testifying attorney's law firm partner was not prohibited from representing the client at trial. The first aspect of this decision is significant, in that it reinforces a principal purpose of the rule: preventing jurors from being confused regarding the lawyer's role. Work by a lawyer who may be called as a witness outside a trial is not likely to cause such confusion. See Texas Rules Rule 3.08 cmt.8 ("This rule does not prohibit the lawyer who may or will be a witness from participating in the preparation of a matter for presentation to a tribunal").

3.7:300   An Affiliated Lawyer as Advocate (Imputed Disqualification)

Primary Texas References: TX Rule 3.08(c)
Background References: ABA Model Rule 3.7(b), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 168, Wolfram § 7.5, 7.6

Texas Rule 3.08 explicitly recognizes that, if a particular lawyer in a firm would not be permitted to act as advocate at trial because he or she is a likely witness, this disqualification does not necessarily extend to other members of that lawyer's firm. If the client in question consents, paragraph (c) Texas Rule 3.08 permits a lawyer in a firm to act as advocate at trial for the client notwithstanding the fact that another lawyer in the firm is likely to be a witness in the case. As the official comment 8 notes, "another lawyer in the testifying lawyer's firm may act as an advocate, provided the client's informed consent is obtained." Texas Rules Rule 3.08 cmt. 8. The Texas Supreme Court reaffirmed this principle in 1996. For discussion of the Koch case, please see 3.7:200.

3.8   Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 3.09
Background References: ABA Model Rule 3.8, Other Jurisdictions
Commentary:

3.8:101      Model Rule Comparison

Texas Rule 3.09, "Special Responsibilities of a Prosecutor," is similar but not identical to Model Rule 3.8 of the same name. Paragraphs (d) and (e) of the Texas Rule are essentially identical in substance to paragraphs (d) and (e) of the Model Rule. Paragraphs (f) and (g) of the Model Rule are not explicitly paralleled in Texas Rule 3.09, though the general subject matter of Model Rule 3.8(g) -- extrajudicial statements -- is touched upon by paragraph (c) of Texas Rule 3.09. Note as well Texas Rule 3.07, "Trial Publicity."

Paragraphs (a) through (c) of Texas Rule 3.09 and Model Rule 3.8 are similar in general focus but not identical in their language.

3.8:102      Model Code Comparison

Paragraph (A) of DR 7-103 provides that a prosecutor shall not institute criminal charges when he knows or it is obvious that the charges are not supported by probable cause. Paragraph (B) calls for prompt disclosure of exculpatory or mitigating evidence.

3.8:200   The Decision to Charge

Primary Texas References: TX Rule 3.09(a)
Background References: ABA Model Rule 3.8(a), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10

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

3.8:300   Efforts to Assure Accused's Right to Counsel

Primary Texas References: TX Rule 3.09(b)
Background References: ABA Model Rule 3.8(b), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10

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

3.8:400   Seeking Waivers of Rights from Unrepresented Defendants

Primary Texas References: TX Rule 3.09(c)
Background References: ABA Model Rule 3.8(c), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10

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

3.8:500   Disclosing Evidence Favorable to the Accused

Primary Texas References: TX Rule 3.09(d)
Background References: ABA Model Rule 3.8(d), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10.5

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

3.8:600   Monitoring Extrajudicial Statements by Law Enforcement Officials

Primary Texas References: TX Rule 3.09(e)
Background References: ABA Model Rule 3.8(e), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10

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

3.8:700   Issuing a Subpoena to a Lawyer

Primary Texas References:
Background References: ABA Model Rule 3.8(f), Other Jurisdictions
Commentary: ABA/BNA § 55:1301, ALI-LGL § 156

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

3.8:800   Making Extrajudicial Statements

Primary Texas References: TX Rules 3.07 & 3.09(e)
Background References: ABA Model Rule 3.8(g), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 169, Wolfram § 12.2.2

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

3.8:900   Peremptory Strikes of Jurors

Primary Texas References:
Background References: Other Jurisdictions
Commentary:

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

3.9   Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 3.10
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary:

3.9:101      Model Rule Comparison

Texas Rule 3.10, "Advocate in Nonadjudicative Proceedings," is similar but not identical to Model Rule 3.9 of the same name. Both rules attempt to set forth professional responsibilities for lawyers who represent clients before legislative or administrative-type bodies in "nonadjudicative proceedings." Texas Rule 3.10 provides in full that a "lawyer representing a client before a legislative or administrative body in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.04(a) through (d), 3.05(a), and 4.01." Texas Rules Rule 3.10. As to the referenced rules, Texas Rule 3.04 deals with "Fairness in Adjudicatory Proceedings," Texas Rule 3.05 deals with "Maintaining Impartiality of Tribunal," and Texas Rule 4.01 addresses "Truthfulness in Statements to Others." (For further discussion of those rules, see, respectively, 3.4:100, 3.5:100, 4.1:100, and immediately following sections; it is important to note that these Texas Rules are not always identical to the Model Rules.)

By way of comparison, Model Rule 3.9 provides that a lawyer representing a client in a "nonadjudicative proceeding" shall disclose that the appearance is in a representative capacity and shall conform to the provisions" of Model "Rules 3.3(a) through (d)" (involving "Candor Toward the Tribunal"), "3.4(a) through (c)" (involving "Fairness to Opposing Party and Counsel"), and Model Rule 3.5 (involving "Impartiality and Decorum of the Tribunal").

3.9:102      Model Code Comparison

For Model Code antecedents, see, for instance, EC 7-15, EC 7-16, and EC 8-5.

3.9:200   Duties of Advocate in Nonadjudicative Proceedings

Primary Texas References: TX Rule 3.10
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary: ABA/BNA § , ALI-LGL § 164, Wolfram § 13.8

For a general discussion of this subject, see section 3.9:101.

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