skip navigation
search

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1   Rule 8.1 Bar Admission and Disciplinary Matters

8.1:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 8.01
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary:

8.1:101      Model Rule Comparison

Texas Rule 8.01, "Bar Admission, Reinstatement, and Disciplinary Matters," is patterned after and very similar to Model Rule 8.1, "Bar Admission and Disciplinary Matters." The Texas Rule makes clear that it also applies to situations involving a petition for reinstatement. While paragraph (b) of the Texas Rule uses the phrase "fail to correct a misapprehension," paragraph (b) of the Model Rule uses the language "failed to disclose a fact necessary to correct a misapprehension."

8.1:102      Model Code Comparison

Model Code antecedents are found in DR 1-101(A), DR 1-101(B), and DR 1-102(A)(5).

8.1:200   Bar Admission

Primary Texas References: TX Rule 8.01
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary: ABA/BNA §§ 21:101, 10l:1, ALI-LGL § 2, Wolfram §§ 15.2, 15.3

As one potential starting point, see Rules Governing Admission to the State Bar of Texas, including Rules I through XX.

8.1:210      Bar Admission Agency

As one potential starting point, see Rules Governing Admission to the State Bar of Texas, including Rules I through XX.

8.1:220      Bar Admission Requirements

As one potential starting point, see Rules Governing Admission to the State Bar of Texas, including Rules I through XX.

8.1:230      Admission on Motion

As one potential starting point, see Rules Governing Admission to the State Bar of Texas, including Rules I through XX.

8.1:240      Admission Pro Hac Vice [see also 5.5:230]

As one potential starting point, see Rules Governing Admission to the State Bar of Texas, including Rules I through XX.

8.1:300   False Statements of Material Fact in Connection with Admission or Discipline

Primary Texas References: TX Rule 8.01
Background References: ABA Model Rule 8.1(a), Other Jurisdictions
Commentary: ABA/BNA §§ 21:301, 101:201, Wolfram § 15.3.1

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

8.1:400   Duty to Volunteer Information to Correct a Misapprehension

Primary Texas References: TX Rule 8.01(b)
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:

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

8.1:410      Protecting Client Confidential Information

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

8.1:500   Application of Rule 8.1 to Reinstatement Proceedings

Primary Texas References: TX Rule 8.01
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary:

8.2   Rule 8.2 Judicial and Legal Officials

8.2:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 8.02
Background References: ABA Model Rule 8.2, Other Jurisdictions
• Commentary:

8.2:101      Model Rule Comparison

Texas Rule 8.02, "Judicial and Legal Officials," is very similar to Model Rule 8.2 of the same name. Paragraph (a) of the Texas Rule corresponds to paragraph (a) of the Model Rule, except that the Texas Rule substitutes "adjudicatory official" (a defined term under the Terminology section of the Texas Rules) for "adjudicatory officer." Paragraph (b) of the Texas Rule parallels paragraph (b) of the Model Rule, but substitutes the "Texas Code of Judicial Conduct" for the "code of judicial conduct" language of the Model Rule. Also, the Texas Rule adds paragraph (c).

8.2:102      Model Code Comparison

Model Code antecedents can be found in DR 8-102(A), DR 8-102(B), and DR 8-103.

8.2:200   False Statements About Judges or Other Legal Officials

Primary Texas References: TX Rule 8.02
Background References: ABA Model Rule 8.2(a), Other Jurisdictions
Commentary: ABA/BNA § 101:601, ALI-LGL § 174, Wolfram § 11.3.2

Texas Rule 8.02, "Judicial and Legal Officials," provides in full:

(a)   A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory official or public legal officer, or of a candidate for election or appointment to judicial or legal office.

(b)   A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Texas Code of Judicial Conduct.

(c)   A lawyer who is a candidate for an elective public office shall comply with the applicable provisions of the Texas Election Code.

Texas Rules Rule 8.02.

8.2:300   Lawyer Candidates for Judicial Office

Primary Texas References: TX Rule 8.02
Background References: ABA Model Rule 8.2(b), Other Jurisdictions
Commentary: ABA/BNA § 101:601, ALI-LGL § 174, Wolfram § 17.2

For treatment of this subject, see section 8.2:200.

8.3   Rule 8.3 Reporting Professional Misconduct

8.3:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 8.03
Background References: ABA Model Rule 8.3, Other Jurisdictions
Commentary:

8.3:101      Model Rule Comparison

Texas Rule 8.03, "Reporting Professional Misconduct" and Model Rule 8.3 of the same name, agree that, unless an exception applies, a lawyer shall inform the appropriate professional authority if the lawyer:

Has knowledge that another lawyer has committed a violation of an applicable rule of professional responsibility that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, or

Has knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to that judge's fitness for office.

Both rules regarding reporting of misconduct further recognize that a lawyer is not required by the rules to disclose information otherwise protected by the general confidentiality rule (Rule 1.05 in Texas, Rule 1.6 under the Model Code—which are not identical). Texas Rule 8.03 and Model Rule 8.3 also address the relevance of lawyer assistance programs, but do so in non-identical language in which paragraph (c) of the Texas Rule, in particular, is more detailed.

8.3:102      Model Code Comparison

DR 1-103(A) provides that "[a] lawyer possessing unprivileged knowledge of a violation of a Disciplinary Rule shall report such knowledge" to the appropriate authority.

8.3:200   Mandatory Duty to Report Serious Misconduct

Primary Texas References: TX Rule 8.03(a)
Background References: ABA Model Rule 8.3(a), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL § 5, Wolfram § 12.10

This subject is generally addressed in sections 8.3:101-102 and the sections immediately following this one, as well as section 8.4:100 and following sections. Paragraph (a) of Texas Rule 8.03, "Reporting Professional Misconduct," provides in full:

Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.

Texas Rules Rule 8.03(a).

The exceptions contained in paragraphs (c) and (d) are further touched upon in section 8.3:400.

8.3:300   Reporting the Serious Misconduct of a Judge

Primary Texas References: TX Rule 8.03(b)
Background References: ABA Model Rule 8.3(b), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL § 5, Wolfram § 12.10

This subject is generally addressed in sections 8.3:101-102 and the sections immediately following this one, as well as section 8.4:100 and following sections. Paragraph (b) of Texas Rule 8.03, "Reporting Professional Misconduct," provides in full:

Except as permitted in paragraph (c) or (d), a lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

Texas Rules Rule 8.03(b).

The exceptions contained in paragraphs (c) and (d) are further touched upon in section 8.3:400.

8.3:400   Exception Protecting Confidential Information

Primary Texas References: TX Rule 8.03(c) & (d)
Background References: ABA Model Rule 8.3(c), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL §§ 113-117A, Wolfram § 12.10

Sections 8.3:200 and 8.3:300 address a lawyer's duty to report serious misconduct by other lawyers, or judges, respectively. This duty is qualified and limited by the terms of paragraphs (a) and (b) of Texas Rule 8.03, respectively, as well as by paragraphs (c) and (d) of that rule.

Paragraph (c) of Texas rule 8.03 provides in full:

A lawyer having knowledge or suspecting that another lawyer or judge whose conduct the lawyer is required to report pursuant to paragraphs (a) or (b) of this Rule is impaired by chemical dependency on alcohol or drugs or by mental illness may report that person to an approved peer assistance program rather than to an appropriate disciplinary authority. If a lawyer elects that option, the lawyer's report to the approved peer assistance program shall disclose any disciplinary violations that the reporting lawyer would otherwise have to disclose to the authorities referred to in paragraphs (a) and (b).

Texas Rules Rule 8.03(c).

Paragraph (d) in turn provides:

This rule does not require disclosure of knowledge or information otherwise protected as confidential information:

(1)   by Rule 1.05 or

(2)   by any statutory or regulatory provisions applicable to the counseling activities of the approved peer assistance program.

Texas Rules Rule 8.03(d).

8.4   Rule 8.4 Misconduct

8.4:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 8.04
Background References: ABA Model Rule 8.4, Other Jurisdictions
Commentary:

8.4:101      Model Rule Comparison

Texas Rule 8.04, "Misconduct" is similar to but more detailed than Model Rule 8.4 of the same name. Paragraph (a)(1) of the Texas Rule generally parallels paragraph (a) of the Model Rule. Paragraph (a)(2) of the Texas Rule corresponds to paragraph (b) of the Model Rule, but the Texas Rule adds a definition of "serious crime." Texas Rules Rule 8.04(b). Model Rule 8.4(c) is essentially identical to Texas Rule 8.04(a)(3). Paragraph (d) of Model Rule 8.4 forbids conduct "that is prejudicial to the administration of justice," while Texas Rule (a)(4) forbids conduct "constituting obstruction of justice." Paragraph (e) of the Model Rule is essentially identical to Texas Rule 8.04 (a)(5), and the final paragraph of the Model Rule -- paragraph (f) -- is basically the same as Texas Rule 8.04(a)(6). Paragraphs (a)(7) through (a)(12) and (b) of the Texas Rule are not expressly paralleled in the text of the Model Rule.

8.4:102      Model Code Comparison

For Model Code antecedents, see DR 1-102(A) and DR 9-101(C).

8.4:200   Violation of a Rule of Professional Conduct

Primary Texas References: TX Rule 8.04(a)(1)
Background References: ABA Model Rule 8.4(a), Other Jurisdictions
Commentary: ABA/BNA § 101:101, ALI-LGL § 2, Wolfram § 3.3

Texas Rule 8.04 defines "[m]isconduct" for purposes of the Texas Rules. Paragraph (a)(1) of the rule provides that a lawyer shall not "violate these rules, knowingly assist or induce another to do so, or through the acts of another, whether or not such violation occurred in the course of a client-lawyer relationship . . . ." Texas Rules Rule 8.04(a)(1).

8.4:300   Commission of a Crime

Primary Texas References: TX Rule 8.04(a)(2) & (b)
Background References: ABA Model Rule 8.4(b), Other Jurisdictions
Commentary: ABA/BNA § 101:301, ALI-LGL § 8, Wolfram § 3.3.2

Texas Rule 8.04 defines "[m]isconduct" for purposes of the Texas Rules. Paragraph (a)(2) of the rule provides that a lawyer shall not "commit a serious crime or commit any other criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects . . . ." Texas Rules Rule 8.04(a)(2). "Serious crime" is defined in paragraph (b) of Texas Rule 8.04.

8.4:400   Dishonesty, Fraud, Deceit and Misrepresentation

Primary Texas References: TX Rule 8.04(a)(3)
Background References: ABA Model Rule 8.4(c), Other Jurisdictions
Commentary: ABA/BNA § 101:401, ALI-LGL § 2, Wolfram § 3.5.8

Paragraph (a)(3) of Texas Rule 8.04 provides that a lawyer shall not engage in conduct "involving dishonesty, fraud, deceit, or misrepresentation . . . ." Texas Rules Rule 8.04(a)(3).

8.4:500   Conduct Prejudicial to the Administration of Justice

Primary Texas References: TX Rule 8.04(a)(4)
Background References: ABA Model Rule 8.4(d), Other Jurisdictions
Commentary: ABA/BNA § 101:501, ALI-LGL § 2, Wolfram § 3.3.2

Texas Rule 8.04 defines "[m]isconduct" for purposes of the Texas Rules. Paragraph (a)(4) of the rule provides that a lawyer shall not engage in conduct "constituting obstruction of justice . . . ." Texas Rules Rule 8.04(a)(4).

8.4:600   Implying Ability to Influence Public Officials

Primary Texas References: TX Rule 8.04(a)(5)
Background References: ABA Model Rule 8.4(e), Other Jurisdictions
Commentary: ABA/BNA § 101:701, ALI-LGL § 173, Wolfram §

Texas Rule 8.04(a)(5) provides that a lawyer shall not "state or imply an ability to influence improperly a government agency or official . . . ." Texas Rules Rule 8.04(a)(5).

8.4:700   Assisting Judge or Official in Violation of Duty

Primary Texas References: TX Rule 8.04(a)(6)
Background References: ABA Model Rule 8.4(f), Other Jurisdictions
Commentary: ABA/BNA § , ALI-LGL § 173, Wolfram §

Paragraph (a)(6) of Texas Rule 8.04 provides that a lawyer shall not "knowingly assist a judge or other judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law . . . ." Texas Rules Rule 8.04(a)(6).

8.4:800   Discrimination in the Practice of Law

Primary Texas References: TX Rule 5.08
Background References: Other Jurisdictions
Commentary: ABA/BNA § 91:301

Texas Rule 8.04, "Misconduct," does not contain an express provision regarding discrimination in the practice of law.

Texas Rule 5.08, "Prohibited Discriminatory Activities," provides in full:

(a)   A lawyer shall not willfully, in connection with an adjudicatory proceeding, except as provided in paragraph (b), manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity.

(b)   Paragraph (a) does not apply to a lawyer's decision whether to represent a particular person in connection with an adjudicatory proceeding, nor to the process of jury selection, nor to communications protected as "confidential information" under these Rules. See Rule 1.05(a), (b). It also does not preclude advocacy in connection with an adjudicatory proceeding involving any of the factors set out in paragraph (a) if that advocacy:

(i)   is necessary in order to address any substantive or procedural issues raised by the proceeding; and

(ii)   is conducted in conformity with applicable rulings and orders of a tribunal and applicable rules of practice and procedure.

Texas Rules Rule 5.08.

8.4:900   Threatening Prosecution

Primary Texas References: TX Rule 4.04(b)
Background References: Other Jurisdictions
Commentary: ABA/BNA § 1:801, 61:601

Texas Rule 8.04, "Misconduct," does not contain an express provision regarding threatening criminal prosecution.

Paragraph (b) of Texas Rule 4.04, "Respect for Rights of Third Persons," provides in full:

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)(1)-(2).

8.5   Rule 8.5 Disciplinary Authority; Choice of Law

8.5:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 8.05
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary:

8.5:101      Model Rule Comparison

Texas Rule 8.05, "Jurisdiction" parallels Model Rule 8.5, "Disciplinary Authority," in some, but not all, respects. Paragraph (a) of each rule, through non-identical language, makes the point that a lawyer licensed in a particular jurisdiction is potentially subject to discipline in that jurisdiction for conduct occurring elsewhere. The Texas Rule notes that bar admission for this purpose can include special admission for a particular proceeding.

Paragraph (b) of the Model Rule sets forth an interesting choice of law/conflict of laws framework adopted by the ABA after Texas initially adopted the Texas Rules effective in 1990. To date, Texas has not amended Rule 8.05 to expressly adopt paragraph (b) of the amended Model Rule.

Texas Rule 8.05 does have a paragraph (b) of its own, not directly paralleled in Model Rule 8.05, that provides in full as follows:

A lawyer admitted to practice in this state is also subject to the disciplinary authority for:

(1)   an advertisement in the public media that does not comply with these rules and that is broadcast or disseminated in another jurisdiction, even if the advertisement complies with the rules governing lawyer advertisements in that jurisdiction, if the broadcast or dissemination of the advertisement is intended to be received by prospective clients in this state and is intended to secure employment to be performed in this state; and

(2)   a written solicitation communication that does not comply with these rules and that is mailed in another jurisdiction, even if the communication complies with the rules governing written solicitation communications by lawyers in that jurisdiction, if the communication is mailed to an addressee if this state or is intended to secure employment to be performed in this state.

Texas Rules Rule 8.05(b).

8.5:102      Model Code Comparison

The Model Code does not appear to include a directly corresponding provision.

8.5:200   Disciplinary Authority

Primary Texas References: TX Rule 8.05
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA § 101:2001, ALI-LGL § 5, Wolfram § 3.2

For a general treatment of this subject matter, see section 8.5:100 and corresponding subsections. Model Rule 8.5 ("Disciplinary Authority; Choice of Law") deals with disciplinary authority in paragraph (a) of the Model Rule, while paragraph (b) of the Model Rule addresses certain choice of law issues.

Texas Rule 8.05, titled simply "Jurisdiction," provides in full:

(a)   A lawyer is subject to the disciplinary authority of this state, if admitted to practice in this state or if specially admitted by a court of this state for a particular proceeding. In addition to being answerable for his or her conduct occurring int his state, any such lawyer also may be disciplined in this state for conduct occurring in another jurisdiction or resulting in lawyer discipline in another jurisdiction, if it is professional misconduct under Rule 8.04.

(b)   A lawyer admitted to practice in this state is also subject to the disciplinary authority for:

(1)   an advertisement in the public media that does not comply with these rules and that is broadcast or disseminated in another jurisdiction, even if the advertisement complies with the rules governing lawyer advertisements in that jurisdiction, if the broadcast or dissemination of the advertisement is intended to be received by prospective clients in this state and is intended to secure employment to be performed in this state; and

(2)   a written solicitation communication that does not comply with these rules and that is mailed in another jurisdiction, even if the communication complies with the rules governing written solicitation communications by lawyers in that jurisdiction, if the communication is mailed to an addressee in this state or is intended to secure employment to be performed in this state.

Texas Rules Rule 8.05.

8.5:300   Choice of Law

Primary Texas References: TX Rule 8.05
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA § 101:2101, ALI-LGL § 2, Wolfram § 2.6.1

For discussion related to this topic, see sections 8.5:100 and related subsections, as well as section 8.5:200.

Copyright
About us
Send email