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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1   Rule 4.1 Truthfulness in Statements to Others

4.1:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 4.01
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary:

4.1:101      Model Rule Comparison

Model Rule 4.1, "Truthfulness in Statements to Others," provides that, in the course of representing a client, a lawyer shall not knowingly "(a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6," the Model Rule on "Confidentiality of Information." Texas Rule 4.01, bearing the same name as Model Rule 4.1, is also comprised of two paragraphs. The text of Texas Rule 4.01's paragraph (a) is the same as paragraph (a) of Model Rule 4.1. Paragraph (b) of Texas Rule 4.01 provides that, in the course of representing a client, a lawyer shall not "fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client."

4.1:102      Model Code Comparison

DR 7-102(A)(5) provides that a lawyer shall not "knowingly make a false statement of law or fact" in his representation of a client. DR 7-102(A)(3) says that a lawyer shall not "conceal or knowingly fail to disclose that which he is required by law to reveal."

4.1:200   Truthfulness in Out-of-Court Statements

Primary Texas References: TX Rule 4.01(a)
Background References: ABA Model Rule 4.1(a), Other Jurisdictions
Commentary: ABA/BNA § 71:201, ALI-LGL § 157, Wolfram § 13.5

For a general discussion of this subject, see section 4.1:100.

4.1:300   Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]

Primary Texas References: TX Rule 4.01(b)
Background References: ABA Model Rule 4.1(b), Other Jurisdictions
Commentary: ABA/BNA § 71:203, ALI-LGL §§ 117A, 151, Wolfram §§ 12.6, 13.3

In addition to Texas Rule 4.01, consider Texas Rules 1.02 and 1.05.

4.2   Rule 4.2 Communication with Person Represented by Counsel

4.2:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 4.02
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary:

4.2:101      Model Rule Comparison

Texas Rule 4.02(a) substantially tracks the ABA Model Rule 4.2. Slight text variations are indicated in italics. Subparagraph (a) of the Texas Rules sets forth the following general proposition: "In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." The official comment 2 to Texas Rule 4.02 notes: "Paragraph (a) does not . . . prohibit communication between a lawyer's client and persons, [or] organizations . . . represented by counsel, as long as the lawyer does not cause or encourage the communication without the consent of the lawyer for the other party." Texas Rule 4.02 continues: "In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." Texas Rules Rule 4.02(b). "When a person, organization, or entity of government that is represented by a lawyer in a matter seeks advice regarding that matter from another lawyer, the second lawyer is not prohibited by paragraph (a) from giving such advice without notifying or seeking consent of the first lawyer." Texas Rules Rule 4.02(d). Texas Rule 4.02, comment 2 points out that a lawyer can furnish a "second opinion" in a matter to one requesting such opinion. Thus Rule 4.02(d) permits an otherwise prohibited communication if it is initiated by the otherwise represented client.

For an interesting federal decision by the Fifth Circuit generally considering these issues, see In re Medrano, 956 F.2d 101 (5th Cir. 1992). For a Texas case, consider FDIC v. Mediplex of Houston, Ltd., 889 S.W.2d 464 (Tex. App.—Houston [14th Dist.] 1994, writ dism'd agr.).

4.2:102      Model Code Comparison

The substance of Texas Rule 4.02 was covered by DR 7-104(A)(1) of the Model Code.

4.2:200   Communication with a Represented Person

Primary Texas References: TX Rule 4.02
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary: ABA/BNA § 71:301, ALI-LGL § 158-162, Wolfram § 11.6.2

The Texas Rule 4.02, adopted in 1990, was generally patterned after the ABA Model Rule 4.2. Robert P. Schuwerk & John F. Sutton, Jr., A Guide to the Texas Disciplinary Rules of Professional Conduct (1990). Paralleling the purpose of ABA Model Rule 4.2, the "no-contact" prohibition, the Texas Rule 4.02 is to safeguard represented parties from the overreaching tactics of opposing attorneys. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 396 (1995); Robert P. Schuwerk & John F. Sutton, Jr., A Guide to the Texas Disciplinary Rules of Professional Conduct (1990) (the "prohibition shields an opposing party not only from a lawyer's calculated and self-serving approaches, but also from misguided and well-intended communications").

4.2:210      "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

Citing Rule 4.02(a) a Texas appeals court expressed "concern" about a court-approved settlement negotiated between the defense lawyers and a representative of plaintiff, where all participants knew that plaintiff was represented by counsel. See Nine Greenway Ltd. v. Heard, Goggan, Blair & Williams, 875 S.W.2d 784, 787 n.3 (Tex. App.--Houston [1st Dist.] 1994, writ denied) (reversed and remanded). Consider as well Texas Ethics Opinion 461.

4.2:220      Communications "Authorized by Law" -- Law Enforcement Activities

Plaintiff's attorney did not violate Rule 4.02 by sending statutory notice to defendant to begin 180 day notice period of claim as prerequisite to an award for prejudgment interest. See Lee v. Fenwick, 907 S.W.2d 88, 90 (Tex. App.--Eastland 1994, writ denied) (Tex. Rev. Civ. Stat. Ann. art. 5069-1.05, § 6 (West Supp. 1995) provides that prejudgment interest begins "on the 180th day after the date the defendant receives written notice of a claim or on the day the suit is filed, whichever occurs first.".

The Texas Rules were promulgated for governing grievance/disciplinary proceedings against attorneys, and were not designed to (1) "prescribe . . . penalties for violations of a rule," (2) "be standards for procedural decisions," (3) "define standards of civil liability of lawyers for professional conduct." Texas Rules, Preamble: Scope at §§ 14-15. The Preamble at § 15 emphasizes: "Violation of a rule does not give rise to a private cause of action nor does it create any presumption that a legal duty to a client has been breached." Moreover the disciplinary rules do not divest an attorney of his rights as a member of the public as set forth in legislative enactments. The defendant in a wrongful death action was a non-profit corporation subject to statutory duty to disclose its financial records to members of the public. The defendant could not avoid its duty of disclosure by alleging a violation of Rule 4.02(a) against plaintiff's attorney who appeared at the non-profit corporation's offices during business hours requesting to review its financial records. See Children's Medical Center v. Richardson, No. 05-94-01157-CV, 1996 WL 307484 (Tex. App.--Dallas May 18, 1995) (unpublished).

4.2:230      Communications "Authorized by Law" -- Other

Plaintiff's attorney did not violate Rule 4.02 by sending statutory notice to defendant to begin 180 day notice period of claim as prerequisite to an award for prejudgment interest. See Lee v. Fenwick, 907 S.W.2d 88, 90 (Tex. App.--Eastland 1994, writ denied).

4.2:240      Communication with a Represented Government Agency or Officer

The FDIC's omission of telephone numbers for witnesses identified as party representatives in its answers to interrogatories was inconsequential where opposing counsel was precluded from communicating with witnesses/party representatives without first obtaining consent of their counsel pursuant to Texas Rules Rule 4.02(a). See FDIC v. Mediplex of Houston, Ltd., 889 S.W.2d 464, 466 (Tex. App.--Houston [14th Dist.] 1994, writ dism'd by agr.) (finding "good cause" to avoid the automatic exclusion rule of Tex. R. Civ. P. 215(5)).

4.2:250      Communication with a Confidential Agent of Non-Client

The Rule prohibits a prosecutor from contacting someone known to be represented by counsel. But the Rule does not apply to government's conduct prior to indictment. And "certainly do[es] not apply to the indiscretions of a non-attorney government informant." See United States v. Johnson, 68 F.3d 899, 902(5th Cir. 1995).

4.3   Rule 4.3 Dealing with Unrepresented Person

4.3:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 4.03
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary:

4.3:101      Model Rule Comparison

The text of Texas Rule 4.03, "Dealing with Unrepresented Person," appears to be identical to Model Rule 4.3.

4.3:102      Model Code Comparison

DR 7-104(A)(2) says that a lawyer should not give advice "to a person who is not represented by a lawyer, other than the advice to secure counsel . . .."

4.3:200   Dealing with Unrepresented Person

Primary Texas References: TX Rule 4.03
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary: ABA/BNA § 71:501, ALI-LGL § 163, Wolfram § 11.6.3

"In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding." Texas Rules Rule 4.03. See also section 1.13:400 (discussing organizations as clients and communications with constituents within the organization).

4.4   Rule 4.4 Respect for Rights of Third Persons

4.4:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 4.04
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary:

4.4:101      Model Rule Comparison

Texas Rule 4.04, "Respect for Rights of Third Persons," is named after Model Rule 4.4. Paragraph (a) of the Texas Rule contains the full text of the Model Rule. Paragraph (b) of the Texas Rule adds:

A lawyer shall not present, participate in presenting, or threaten to present:

(1)   criminal or disciplinary charges solely to gain an advantage in a civil matter; or

(2)   civil, criminal or disciplinary charges against a complainant, a witness, or a potential witness in a bar disciplinary proceeding solely to prevent participation by the complainant, witness or potential witness therein.

Texas Rules Rule 4.04(b).

4.4:102      Model Code Comparison

DR 7-106(C)(2) and DR 7-102(A)(1) generally state that, in representing a client, a lawyer shall refrain from conduct calculated just to degrade, harass, or maliciously injure third parties, including witnesses. DR 7-108(D) and DR 7-108(E) have generally similar provisions regarding contacts with veniremen or jurors.

4.4:200   Disregard of Rights or Interests of Third Persons

Primary Texas References: TX Rule 4.04
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary: ABA/BNA § 71:101, ALI-LGL §§ 163, 166, 167, Wolfram § 12.4.4

Texas Rule 4.04, "Respect for Rights of Third Persons," provides in full:

(a)   In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

(b)   A lawyer shall not present, participate in presenting, or threaten to present:

(1)   criminal or disciplinary charges solely to gain an advantage in a civil matter; or

(2)   civil, criminal or disciplinary charges against a complainant, a witness, or a potential witness in a bar disciplinary proceeding solely to prevent participation by the complainant, witness or potential witness therein.

Texas Rules Rule 4.04.

4.4:210      Cross-Examining a Truthful Witness; Fostering Falsity

In Resolution Trust Corp. v. Bright, 6 F.3d 336 (5th Cir. 1993), the Fifth Circuit found no violation in lawyers conducting lengthy interviews with a witness in which the lawyers attempted to persuade the witness to alter certain statements in her affidavit; the interviews were conducted for purposes of obtaining an accurate and favorable affidavit.

4.4:220      Threatening Prosecution [see 8.4:900]

For discussion of this matter, see section 4.4:200 (particularly Texas Rule 4.04(b)), as well as Texas Ethics Opinions 457 and 455.

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