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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VII. INFORMATION ABOUT LEGAL SERVICES

7.1   Rule 7.1 Communications Concerning a Lawyer's Services

7.1:100   Comparative Analysis of Texas Rule

• Primary Texas References: TX Rules 7.02 & 7.04
• Background References: ABA Model Rule 7.1, Other Jurisdictions
• Commentary:

7.1:101      Model Rule Comparison

Model Rule 7.1, "Communications Concerning a Lawyer's Services," generally corresponds to Texas Rule 7.02 of the same name. The Model Rule generally addresses concerns about factual or legal misrepresentations, creation of unjustified expectations, and comparison of the lawyer's services with other lawyers' services that cannot be substantiated. Paragraph (a) of Texas Rule 7.02 addresses similar concerns, but the language is not identical to Model Rule 7.1. Paragraphs (c) through (d) of Texas Rule 7.02 address additional matters. As of November 1998, Texas lawyers were considering a referendum to amend certain of the Texas Rules. The text of the current version of the rule is appended to this narrative. If the rule is amended, the narrative will be updated in due course to address important changes in the rule, if any.

Note as well that Texas has a criminal barratry statute (Penal Code 38.12) which has been the subject of considerable constitutional litigation. See also Texas Business & Commerce Code § 35.54. This narrative analyzes the Texas Rules, not these other provisions.

7.1:102      Model Code Comparison

For Model Code antecedents to Model Rule 7.1, see DR 2-101(A), (B), and (C).

7.1:200   Lawyer Advertising--In General

• Primary Texas References: TX Rule 7.02
• Background References: ABA Model Rule 7.1, Other Jurisdictions
• Commentary: ABA/BNA § 81.1, Wolfram § 14.2

7.1:210      Prior Law and the Commercial Speech Doctrine

Courts increasingly have recognized, and protected as commercial speech under the first amendment, a lawyer's right to communicate in an effort to obtain employment. For a fairly recent decision considering the constitutionality of the Texas Rules in this area (and upholding the constitutionality of most of the challenged provisions), see Texans Against Censorship, Inc. v. State Bar of Texas, 888 F. Supp. 1328 (E.D. Tex. 1995). See also, for instance, one or more of the commentaries listed above for a discussion of the evolution of the law in this area.

7.1:220      False and Misleading Communications

Paragraph (a) of Texas Rule 7.02 addresses generally this subject. As of November 1998, Texas lawyers were considering a referendum to amend certain of the Texas Rules. The text of the current version of the rule is appended to this narrative. If the rule is amended, the narrative will be updated in due course to address important changes in the rule, if any.

7.1:230      Creating Unjustifiable Expectations

Paragraph (a) of Texas Rule 7.02 addresses generally this subject. As of November 1998, Texas lawyers were considering a referendum to amend certain of the Texas Rules. The text of the current version of the rule is appended to this narrative. If the rule is amended, the narrative will be updated in due course to address important changes in the rule, if any.

7.1:240      Comparison with Other Lawyers

Paragraph (a) of Texas Rule 7.02 addresses generally this subject. As of November 1998, Texas lawyers were considering a referendum to amend certain of the Texas Rules. The text of the current version of the rule is appended to this narrative. If the rule is amended, the narrative will be updated in due course to address important changes in the rule, if any.

7.2   Rule 7.2 Advertising

7.2:100   Comparative Analysis of Texas Rule

• Primary Texas References: TX Rules 7.02 & 7.04
• Background References: ABA Model Rule 7.2, Other Jurisdictions
• Commentary:

7.2:101      Model Rule Comparison

Model Rule 7.2, "Advertising," generally corresponds to Texas Rule 7.04, "Advertisements in the Public Media," but the rules are not identical. Both rules recognize, the Model Rule explicitly (e.g., Model Rule 7.2(a)) and the Texas Rule by implication, that a lawyer is free to advertise except as the applicable rule may prohibit. (Of course, first amendment issues can potentially arise in certain instances as to the constitutionality of prohibitions on lawyer advertising.) Paragraph (b) of Model Rule 7.2, regarding record keeping for advertisements, is picked up in paragraph (f) of Texas Rule 7.04, which imposes a four year requirement (rather than the Model Rule two year requirement). Model Rule 7.2(c)'s restrictions on a lawyer paying a third party to recommend a lawyer's services is touched upon in Texas Rule 7.03. The provisions are not identical. (For instance, the Model Rule refers to Model Rule 1.17, "Sale of Law Practice," and the Texas Rules have no directly corresponding provision.) Paragraph (d) of the Model Rule, calling for identification in the advertisement of at least one lawyer responsible for its content, is generally picked up in paragraph (b)(1) of Texas Rule 7.04.

As of November 1998, Texas lawyers were considering a referendum to amend certain of the Texas Rules. The text of the current version of the rule is appended to this narrative. If the rule is amended, the narrative will be updated in due course to address important changes in the rule, if any.

7.2:102      Model Code Comparison

For Model Code antecedents to Model Rule 7.2, see DR 2-101(B), (D), and (I), as well as DR 2-103(B) and (D).

7.2:200   Permissible Forms of Lawyer Advertising

• Primary Texas References: TX Rules 7.02 & 7.04
• Background References: ABA Model Rule 7.2(a), Other Jurisdictions
• Commentary: ABA/BNA § 81.201, Wolfram § 14.2

For a general discussion of this subject, see section 7.2:100. The Texas Rules address written solicitation communications separately in Texas Rule 7.05.

As of November 1998, Texas lawyers were considering a referendum to amend certain of the Texas Rules. The text of the current version of the rule is appended to this narrative. If the rule is amended, the narrative will be updated in due course to address important changes in the rule, if any.

7.2:300   Retaining Copy of Advertising Material

• Primary Texas References: TX Rule 7.04(f)
• Background References: ABA Model Rule 7.2(b), Other Jurisdictions
• Commentary: ABA/BNA § 81:401, Wolfram § 14.2

This subject is addressed in section 7.2:100.

7.2:400   Paying to Have Services Recommended

• Primary Texas References: TX Rule 7.03
• Background References: ABA Model Rule 7.2(c), Other Jurisdictions
• Commentary: ABA/BNA § 81.301, Wolfram § 14.2

This subject is addressed in section 7.2:100.

7.2:500   Identification of a Responsible Lawyer

• Primary Texas References: TX Rule 7.04(b)
• Background References: ABA Model Rule 7.2(d), Other Jurisdictions
• Commentary: ABA/BNA §§ 81.201, 81:301, Wolfram § 14.2

This subject is addressed in section 7.2:100.

7.3   Rule 7.3 Direct Contact with Prospective Client

7.3:100   Comparative Analysis of Texas Rule

• Primary Texas References: TX Rule 7.03(a)
• Background References: ABA Model Rule 7.3, Other Jurisdictions
• Commentary:

7.3:101      Model Rule Comparison

Model Rule 7.3 addresses "Direct Contact with Prospective Clients," whether in person, by telephone, or "by written or recorded communication." Paragraph (a) of Texas Rule 7.03, "Prohibited Solicitations and Payments," regulates "in person or telephone" contacts, but its language is not identical to the Model Rule. Paragraphs (b) and (c) of Model Rule 7.3 focus on "written or recorded" communications by lawyers in seeking employment. The Texas Rules address such written communications in a free-standing Rule 7.05, "Prohibited Written Solicitations," with language differing somewhat from the ABA approach.

As of November 1998, Texas lawyers were considering a referendum to amend certain of the Texas Rules. The text of the current version of the rule is appended to this narrative. If the rule is amended, the narrative will be updated in due course to address important changes in the rule, if any.

7.3:102      Model Code Comparison

Model Code antecedents to Model Rule 7.3 are found in, for instance, DR 2-104(A) and related subparagraphs.

7.3:200   Prohibition of For-Profit In-Person Solicitation

• Primary Texas References: TX Rule 7.03
• Background References: ABA Model Rule 7.3(a), Other Jurisdictions
• Commentary: ABA/BNA § 81:2001, Wolfram § 14.2.5

This subject is addressed in section 7.3:101.

As of November 1998, Texas lawyers were considering a referendum to amend certain of the Texas Rules. The text of the current version of the rule is appended to this narrative. If the rule is amended, the narrative will be updated in due course to address important changes in the rule, if any.

7.3:210      Solicitation by Non-Profit Public Interest Organization

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

7.3:220      Solicitation of Firm Clients by a Departing Lawyer

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

7.3:300   Regulation of Written and Recorded Solicitation

• Primary Texas References: TX Rules 7.04 & 7.05
• Background References: ABA Model Rule 7.3(b), Other Jurisdictions
• Commentary: ABA/BNA § 81:2001, Wolfram § 14.2.5

Written solicitation communications are addressed by Texas Rule 7.05, "Prohibited Written Solicitations." As of November 1998, Texas lawyers were considering a referendum to amend certain of the Texas Rules. The text of the current version of the rule is appended to this narrative. If the rule is amended, the narrative will be updated in due course to address important changes in the rule, if any.

7.3:400   Disclaimers for Written and Recorded Solicitation

• Primary Texas References: TX Rules 7.02, 7.04(a) & (b) and 7.05(b)
• Background References: ABA Model Rule 7.3(c), Other Jurisdictions
• Commentary: ABA/BNA § 81:401, Wolfram § 14.2.5

Written solicitation communications are addressed by Texas Rule 7.05, "Prohibited Written Solicitations." As of November 1998, Texas lawyers were considering a referendum to amend certain of the Texas Rules. The text of the current version of the rule is appended to this narrative. If the rule is amended, the narrative will be updated in due course to address important changes in the rule, if any.

7.3:500   Solicitation by Prepaid and Group Legal Services Plans

• Primary Texas References: TX Rules 7.03(e) and 7.04(n), (o) & (p)
• Background References: ABA Model Rule 7.3(d), Other Jurisdictions
• Commentary: ABA/BNA § 81:2501, Wolfram § 16.5.5

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

7.4   Rule 7.4 Communication of Fields of Practice

7.4:100   Comparative Analysis of Texas Rule

• Primary Texas References: TX Rules 7.02, 7.04(a), (b) & (c) and 7.05(a)
• Background References: ABA Model Rule 7.4, Other Jurisdictions
• Commentary:

7.4:101      Model Rule Comparison

Model Rule 7.4, "Communication of Fields of Practice," does not find a free-standing rule analogue in the Texas rules. Rather, the Texas Rules touch on the subject in, for instance, paragraphs (c) through (d) of Texas Rule 7.02, paragraphs (a) through (c) of Texas Rule 7.04, and paragraph (a) of Texas Rule 7.05. As of November 1998, Texas lawyers were considering a referendum to amend certain of the Texas Rules. The text of the current version of the rule is appended to this narrative. If the rule is amended, the narrative will be updated in due course to address important changes in the rule, if any.

7.4:102      Model Code Comparison

For Model Code antecedents to Model Rule 7.4 see, for instance, DR 2-105(A) and EC 2-14.

7.4:200   Regulation of Claims of Certification and Specialization

• Primary Texas References: TX Rules 7.02, 7.04(a), (b) & (c) and 7.05(a)
• Background References: ABA Model Rule 7.4, Other Jurisdictions
• Commentary: ABA/BNA §§ 21:4001, 81:501, Wolfram § 14.2.4

For a general treatment of this subject, see section 7.4:101.

7.5   Rule 7.5 Firm Names and Letterheads

7.5:100   Comparative Analysis of Texas Rule

• Primary Texas References: TX Rule 7.01
• Background References: ABA Model Rule 7.5, Other Jurisdictions
• Commentary:

7.5:101      Model Rule Comparison

Model Rule 7.5, "Firm Names and Letterheads," finds a general parallel in Texas Rule 7.01 of the same name, but the language of the respective rules are not identical. Paragraphs (a) through (d) of Texas Rule 7.01 roughly relate to the corresponding paragraphs of Model Rule 7.5, but the language is not always the same. Texas Rule 7.01 adds paragraphs (e) and (f).

As of November 1998, Texas lawyers were considering a referendum to amend certain of the Texas Rules. The text of the current version of the rule is appended to this narrative. If the rule is amended, the narrative will be updated in due course to address important changes in the rule, if any.

7.5:102      Model Code Comparison

For Model Code analogues to Model Rule 7.5, see DR 2-102(B), (C), and (D).

7.5:200   Firm Names and Trade Names

• Primary Texas References: TX Rule 7.01(a)
• Background References: ABA Model Rule 7.5(a), Other Jurisdictions
• Commentary: ABA/BNA § 81:3001, Wolfram § 14.2.4

This subject is generally addressed in section 7.5:101.

7.5:300   Law Firms with Offices in More Than One Jurisdiction

• Primary Texas References: TX Rule 7.01(b) & (e)
• Background References: ABA Model Rule 7.5(b), Other Jurisdictions
• Commentary: ABA/BNA § 81:3005, Wolfram § 15.4

This subject is generally addressed in section 7.5:101.

7.5:400   Use of the Name of a Public Official

• Primary Texas References: TX Rule 7.01(c)
• Background References: ABA Model Rule 7.5(c), Other Jurisdictions
• Commentary: ABA/BNA § 81:3001, Wolfram § 14.2.4

This subject is generally addressed in section 7.5:101.

7.5:500   Misleading Designation as Partnership, etc.

• Primary Texas References: TX Rule 7.01
• Background References: ABA Model Rule 7.5(d), Other Jurisdictions
• Commentary: ABA/BNA § 81:3001, ALI-LGL § 79, Wolfram § 14.2.4

This subject is generally addressed in section 7.5:101.

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