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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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
0.1:100 Sources of Law and Guidance
The Texas Disciplinary Rules of Professional Conduct ("Texas Rules") provide the substantive law for determining whether a lawyer has engaged in professional misconduct of a nature calling for professional discipline, as further discussed in section 0.2:240. Texas common law (i.e., judge-made law) generally determines whether a lawyer can be liable to a client for malpractice. Federal and state statutes may limit a lawyer's freedom to act for a client. Ethics opinions (issued by a committee of the State Bar of Texas created for that purpose) can provide guidance. Model Rules adopted by the American Bar Association and the rules of other jurisdictions outside Texas may be informative for purposes of comparison and, in some instances, possible guidance.
Paragraph 10 of the Preamble to the Texas Rules helps illuminate the scope and application of those rules:
The Texas Disciplinary Rules of Professional Conduct are rules of reason. The Texas Disciplinary Rules of Professional Conduct define proper conduct for purposes of professional discipline. They are imperatives, cast in the terms "shall" or "shall not." The Comments are cast often in the terms of "may" or "should" and are permissive, defining areas in which the lawyer has professional discretion. When a lawyer exercises such discretion, whether by acting or not acting, no disciplinary action may be taken. The Comments also frequently illustrate or explain applications of the rules, in order to provide guidance for interpreting the rules and for practicing in compliance with the spirit of the rules. The Comments do not, however, add obligations to the rules and no disciplinary action may be taken for failure to conform to the Comments.
The Preamble also drives home the point that the rules do not exhaust the moral and ethical considerations that a lawyer can entertain:
The rules presuppose a larger legal context shaping the lawyer's role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. Compliance with the rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The rules and Comments do not, however, exhaust the moral and ethical considerations that should guide a lawyer, for no worthwhile human activity can be completely defined by legal rules.
The Texas Rules are patterned after, but not identical to, the American Bar Association Model Rules of Professional Conduct ("Model Rules"). The Texas Rules became effective in January, 1990 and replaced the Texas Code of Professional Conduct (which was patterned after the ABA Model Code of Professional Conduct).
In 1984, the State Bar of Texas began considering possible changes to the Texas Code, largely in light of the ABA's replacement in 1983 of the Model Code with the Model Rules. In Texas, the Model Rules of Professional Conduct Committee was formed to further this effort. As discussed in section 0.1:104 and elsewhere, the rules proposed by the Texas committee varied significantly from the Model Rules in several respects. In 1989, the State Bar of Texas voted in a referendum to adopt the proposed Texas Rules. The Texas Supreme Court in an October 17, 1989 order announced that the Texas Rules would become effective January 1, 1990.
Texas Rule 1.04(f) acknowledges the permissibility of referral or forwarding fees. These are fees which are paid when one lawyer forwards a case or legal matter to another lawyer for handling. Not all forwarding lawyers seek a referral fee, but the practice is permitted under the Texas Rules consistent with Texas Rule 1.04, which is further discussed at section 1.5:101.
Texas Rule 1.05, dealing with a lawyer's general duty to refrain from disclosing a client's confidential information, differs somewhat from the analogous Model Rule 1.6. For instance, while the text of Model Rule 1.6 itself does not require disclosure under any circumstance, Texas Rule 1.05 makes disclosure mandatory in certain specific instances (e.g, when a lawyer has confidential information clearly establishing that the client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, and disclosure reasonably appears necessary to prevent the client from committing the criminal or fraudulent act).
With respect to conflicts of interest, Texas Rule 1.06 differs significantly from Model Rule 1.7. Texas Rule 1.06 recognizes that a lawyer generally is free to represent interests adverse to a current client, unless (1) the matter adverse to the current client is substantially related to a matter the lawyer is handling or has handled for the client, or (2) the representation reasonably appears to be or become adversely limited by the lawyer's responsibilities to another client or third person or by the lawyer's own interests.
The Model Rule 1.8 provisions dealing with perceived potential conflicts of interest involving "parent, child, sibling, or spouse relationships" are not found in the Texas Rules.
Unlike the Model Rules (e.g., Model Rule 1.10), the Texas Rules do not contain an independent, free-standing rule on imputed disqualification. The Texas Rules address that matter in the context of other rules, as discussed in section 1.10:101.
Model Rule 6.1, "Pro Bono Publico Service," does not find a direct, free-standing analogue in the the Texas Rules, but the State Bar of Texas strongly encourages pro bono service. Texas Rule 6.01 addresses accepting appointments by a tribunal.
The Texas Rules do not have a free-standing rule parallel to Model Rule 1.17, "Sale of Law Practice."
The Texas Rules on advertising and solicitation of legal business are in many ways more detailed than generally corresponding Model Rules.
The Texas Rules also differ from the Model Rules or otherwise are unique in a number of other respects; these examples are purely illustrative and not exhaustive.
As of December 14, 1998, lawyers licensed in Texas were considering a referendum that, if approved, would change certain of the Texas Rules. This narrative does not address those proposed changes. Should changes actually be adopted in connection with the 1998 referendum, this narrative will be updated to address them.
0.2:200 Forms of Lawyer Regulation in Texas
A lawyer licensed in Texas can be subjected to professional discipline (e.g., disbarment, suspension of law license, public or private reprimand), for violation of one or more of the Texas Disciplinary Rules of Professional Conduct ("Texas Rules"). The Texas Rules provide the substantive law for determining whether a lawyer subject to the rules has committed professional misconduct. The provisions of the Texas Rules are enforced or carried out by another set of rules, procedural in nature, called the Texas Rules of Disciplinary Procedure ("Texas Disciplinary Rules"). Both sets of rules, which are set forth in the Texas Government Code, were put into effect by the Supreme Court of Texas. Tex. Disciplinary R. Prof. Conduct (1990) and Tex. R. Disciplinary P. (1992), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. (Vernon Supp. 1997). The Preamble to the Texas Disciplinary Rules states in pertinent part that the Texas Supreme Court "has the constitutional and statutory responsibility within the State for the lawyer discipline and disability system, and has the inherent power to maintain appropriate standards of professional conduct and to dispose of individual cases of lawyer discipline and disability in a manner that does not discriminate by race, creed, color, sex, or national origin." Texas Disciplinary Rules Preamble. The Preamble further provides that the Texas Supreme Court delegates to the Board of Directors of the State Bar of Texas the responsibility for administering and supervising lawyer discipline and disability, subject to the Texas Supreme Court's inherent powers. The Texas Disciplinary Rules ordered by the Texas Supreme Court have created a disciplinary framework and machinery largely administered by the State Bar, but ultimately subject to judicial review. Individual Texas courts typically do not promulgate their own detailed rules of professional conduct, and instead generally look to the Texas Rules. Individual Texas trial courts often do, however, impose specific rules governing courtroom etiquette and related matters. As in other jurisdictions, Texas courts also in effect can enforce certain professional responsibility rules and norms in appropriate cases through contempt proceedings.
As noted above, the Texas Supreme Court has provided a limited delegation of authority to the State Bar of Texas ("State Bar") for the day-to-day regulation of professional conduct by lawyers in the state, subject to judicial review. The State Bar from time to time has proposed specific rules of professional responsibility, as well as amendments to existing rules. The rules proposed by the Bar, and promulgated (in some instances with changes) by the Texas Supreme Court are found in the Texas Disciplinary Rules of Professional Conduct. These Rules are codified in the Texas Government Code. The State Bar, at the direction of the Texas Supreme Court, has implemented an extensive disciplinary machinery. Bar organizations in Texas also have been largely responsible for the implementation and administration of continuing legal education programs. Texas requires each lawyer to fulfill a minimum obligation each year in ethics study. The State Bar of Texas is located at 1414 Colorado Street, Austin, Texas, 78701-1627. The mailing address is P. O. Box 12487, Austin, Texas 78711-2487. The main phone number is (512) 463-1463, and the fax number is (512) 463-1475. As of this writing, the State Bar is working on creation of a website or websites on the Internet. The State Bar has an Ethics Hotline (1-800-532-3947) to offer informal oral guidance for lawyers regarding professional responsibility issues under the Texas Disciplinary Rules of Professional Conduct. Pursuant to sections 81.091 through 81.095 of the State Bar Act, as set forth in Texas Government Code, a Professional Ethics Committee has been created by the Texas Supreme Court. This committee is authorized to issue written opinions regarding such matters. Requests for written opinions from the Professional Ethics Committee should be submitted to the committee through the General Counsel's office of the State Bar; contact the State Bar for further details.
As discussed above, the Texas State Bar, subject to the authority of the Texas Supreme Court, is the principal disciplinary agency of lawyers in the state. It has an elaborate disciplinary process, which is explained further below. See 0.2:240.
The Texas Disciplinary Rules of Professional Conduct provide the substantive law governing disciplinary proceedings against lawyers licensed in Texas. The procedural rules governing disciplinary proceedings against lawyers are set forth in the Texas Rules of Disciplinary Procedure. The Texas Disciplinary Rules address at least the following topics: the composition and operation of District Grievance Committees; procedures for trial de novo in Texas district courts; the composition and operation of the Commission for Lawyer Discipline; the selection, duties, and accountability of the Chief Disciplinary Counsel; rules governing public access to information regarding disciplinary procedures; the composition and operation of the Board of Disciplinary Appeals; and standards for compulsory discipline, reciprocal discipline, and other matters.
As of December 14, 1998, members of the State Bar of Texas were considering a referendum that, if adopted, would change certain of the disciplinary rules. If changes in fact are approved and implemented pursuant to the 1998 referendum, this narrative will be updated to reflect such changes.
Very broadly speaking, the disciplinary process is set in motion when a written statement is submitted to the State Bar intended to allege that a lawyer committed professional misconduct. The statement is first routed to the Chief Disciplinary Counsel. If the statement is determined to constitute a "Complaint" within the meaning of the rules, the lawyer complained of is instructed to submit a written response to the appropriate district grievance committee. The chair of the committee then appoints an investigatory panel to determine if there is just cause for the Complaint. If just cause is found, the challenged lawyer can either agree to discipline (except for disbarment) or continue to challenge the Complaint. If the lawyer elects to challenge the just cause finding, the lawyer can choose to have the Complaint heard either in a state district court or by an evidentiary panel. If the lawyer goes the evidentiary panel route, the panel will conduct an investigation and determine whether a sanction or sanctions should be imposed on the lawyer and, if so, what type. The lawyer, the complaining party, and the Chief Disciplinary Counsel can appeal a decision of the evidentiary panel to the Board of Disciplinary Appeals. (Both the evidentiary panel and the Board of Disciplinary Appeals are creatures of the Texas Disciplinary Rules.) An appeal from a decision of the Board of Disciplinary Appeals, where permitted, is to the Texas Supreme Court. If the lawyer instead elects a trial de novo in the district court, the challenged lawyer can have a jury trial if the required procedures are followed. A final judgment by the district court may be appealed as in civil cases generally. If sanctions are imposed on the lawyer, they can range from disbarment to private reprimand, and can include restitution and payment of attorneys' fees.
"When an attorney has been convicted of an Intentional Crime, and that conviction has become final, or the attorney accepted probation with or without an adjudication of guilt for an Intentional Crime, the attorney shall be disbarred unless the Board of Disciplinary Appeals, under Section 8.06, suspends his license to practice law." Texas Rules of Disciplinary Procedure ("Texas Disciplinary Rules"), Rule 8.05. Texas Disciplinary Rule 8.06 in turn provides in pertinent part: "If an attorney's sentence upon conviction of a Serious Crime is fully probated, or if an attorney receives probation through deferred adjudication in connection with a Serious Crime, the attorney's license to practice law shall be suspended during the term of probation." Texas Disciplinary Rule 8.06.
A "Serious Crime" means barratry; any felony involving moral turpitude; any misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation or another to commit any of the foregoing crimes." Texas Disciplinary Rules 1.06(u). "Intentional Crime" means (1) any Serious Crime that requires proof of knowledge or intent as an essential element or (2) any crime involving misapplication of money or other property held as a fiduciary." Texas Rules 1.06(o).
The Texas Supreme Court has considered and rejected certain constitutional challenges to these provisions. See Sanchez v. Board of Disciplinary Appeals, 877 S.W.2d 751 (Tex. 1994).
A disbarred person can seek reinstatement under certain circumstances. See Texas Disciplinary Rule 11.01 and following rules.
Texas courts, like courts in other jurisdictions, are authorized to impose sanctions on counsel and their clients in appropriate cases. Rule 13 of the Texas Rules of Civil Procedure provides the Texas analogue to Rule 11 of the Federal Rules of Civil Procedure. Rule 13 authorizes Texas district courts (i.e., trial courts) to impose sanctions on lawyers for improper conduct, including the filing of baseless, frivolous pleadings, as well as the pursuit of "fictitious" suits in an effort to get an opinion from a Texas court. Rule 215 of the Texas Rules of Civil Procedure, in turn, provides a mechanism for imposition of sanctions for discovery abuse. Whenever the "Supreme Court shall determine that application for writ of error has been taken for delay and without sufficient cause, then the court may award each prevailing respondent an appropriate amount as damages against such petitioner." Tex. R. App. P. 182(b).
As noted above, a lawyer can be subject to contempt proceedings for improper conduct constituting contempt. Guillory v. State, 557 S.W.2d 118 (Tex. Crim. App. 1977). A person's status as a lawyer does not, under Texas law, necessarily immunize the lawyer from criminal or civil liability. On the other hand, in fulfilling a duty of zealously representing his client within the bounds of the law, a lawyer will not be subject to liability for damages for exercising the right to interpose any defense or make use of any right on behalf of the client which the lawyer deems proper or necessary. Bradt v. West, 892 S.W.2d 56 (Tex. App.—Houston [1st Dist.] 1994, writ denied). A lawyer may be liable to his or her client for malpractice in appropriate cases. Willis v. Maverick, 760 S.W.2d 642 (Tex. 1988). Lawyer civil liability, including potential civil liability to non-clients, is discussed further below. As a general proposition, Texas courts have affirmed and reaffirmed the doctrine of privity. Under this doctrine, a lawyer typically cannot be held liable for professional negligence to a non-client. For further general discussion of related subjects, see, for instance, 1.1:410 through 1.1:430.
As discussed in greater detail elsewhere in this outline, federal courts and federal agencies often seek to define their own rules of professional conduct for lawyers practicing before them. Perhaps most widely publicized has been the effort of the Department of Justice to ensure that its lawyers are not restricted in their actions by various state disciplinary rules limiting ex parte contacts with represented persons. See, e.g., United States v. Lopez, 4 F.3d 1455 (9th Cir. 1993). The United States Supreme Court has held that a state cannot prevent a lawyer from practicing law in the state—even if the lawyer is not licensed to practice in the state—if the lawyer in question is practicing before a federal agency that has authorized such practice. Sperry v. State of Florida, 373 U.S. 379 (1963). The ethics rules applied in federal courts in Texas are discussed immediately below. See 0.2:280.
Federal district courts are the trial courts under the federal system. The federal circuit courts are the intermediate appellate courts, with the United States Supreme Court at the top of the judicial hierarchy. Federal district courts in Texas are divided into the following districts: the Southern, Northern, Eastern, and Western districts. Each of these four districts has adopted its own local rules. Each such set of rules, in turn, contains or incorporates rules governing the professional conduct of lawyers. The Southern district, for instance, adopts in its local rules the Texas Disciplinary Rules of Professional Conduct. The Eastern and Western districts adopt rules from an admixture of sources. In short, the rules in the Southern district are not the same as the rules in the Northern district. Each of the four districts offers a somewhat different array of rules and standards for the lawyer to follow.
Interestingly, however, the local rules adopted by these districts are not the end of the inquiry for a practitioner in Texas federal courts. The Fifth Circuit has held that the local rules adopted by a federal district subject to Fifth Circuit review are not necessarily controlling in any particular case. In the Dresser Industries case, a lawyer sought to represent interests adverse to a current client. When the current client moved to disqualify the lawyer, the lawyer argued that Rule 1.06 of the Texas Disciplinary Rules of Professional Conduct uniquely permitted the lawyer to pursue the adverse representation. The federal district court agreed, and refused to disqualify the lawyer. The complaining current client then sought relief in the Fifth Circuit through a petition for writ of mandamus. The Fifth Circuit held that lawyers practicing in federal court are, in effect, subject to a federal common law of professional responsibility. The Fifth Circuit viewed the Texas rule to be at variance with the federal ‘common law' in this area. Accordingly, the Fifth Circuit ruled that the federal district court erred and abused his discretion in applying a rule that the federal district court itself had adopted. See In re Dresser Industries, Inc., 972 F.2d 540 (5th Cir. 1992).
0.3:300 Organization of This Library and the Model Rules
This Texas narrative compares and considers the Texas Disciplinary Rules of Professional Conduct ("Texas Rules") in relation and reference to the American Bar Association Model Rules of Professional Conduct ("Model Rules"). In many instances, the Texas Rules, which are patterned after the Model Rules, are not identical to the Model Rules. Some Model Rules do not find a direct analogue in the Texas Rules, and vice-versa. Further, in a number of instances, a particular Texas Rule will vary significantly from the corresponding Model Rule. This narrative is intended only for general information. It is not intended to substitute, and cannot substitute, for a close and careful study of each pertinent rule itself. This narrative does not attempt to be complete or exhaustive -- only one point of departure for closer research. Note as well that the heading "primary Texas reference" can sometimes be misleading, since, for instance, the Texas Rules will not always have an analogue to a particular Model Rule provision.
0.4:400 Abbreviations, References and Terminology
Several definitions under the Texas Rules are set forth in the immediately following sections.
Under the Texas Rules, "belief" or "believes" means "that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances." Texas Rules Terminology.
Under the Texas Rules, "consult" or "consultation" means "communication of information and advice reasonably sufficient to permit the client to appreciate the significance of the matter in question." Texas Rules Terminology.
Under the Texas Rules, "firm" or "law firm" means "a lawyer or lawyers in a private firm; or a lawyer or lawyers employed in the legal department of a corporation, legal services organization, or other organization, or in a unit of government." Texas Rules Terminology.
Under the Texas Rules, the words "fraud" or "fraudulent" mean "conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information." Texas Rules Terminology.
Under the Texas Rules, "knowingly," "known," or "knows" means "actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances." Texas Rules Terminology.
Under the Texas Rules, "partner" means "an individual or corporate member of a partnership or a shareholder in a law firm organized as a professional corporation." Texas Rules Terminology.
Under the Texas Rules, "reasonable" or "reasonably" when used in relation to conduct by a lawyer means "the conduct of a reasonably prudent and competent lawyer." Texas Rules Terminology.
Under the Texas Rules, "reasonable belief" or "reasonably believes" when used in reference to a lawyer means "that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable." Texas Rules Terminology.
Under the Texas Rules, "substantial" when used in reference to a degree or extent means "a matter of meaningful significance or involvement." Texas Rules Terminology.
0.4:500 Additional Definitions in Texas
The Texas Rules provide the following additional definitions under "Terminology."
"Adjudicatory official" means "a person who serves on a tribunal." The phrase "adjudicatory proceeding" means "the consideration of a matter by a Tribunal." The words "competent" or "competence" mean "possession or the ability to timely acquire the legal knowledge, skill, and training reasonably necessary for the representation of the client."
The term "fitness" means "those qualities of physical, mental and psychological health that enable a person to discharge a lawyer's responsibilities to clients in conformity with the Texas Disciplinary Rules of Professional Conduct." Further, "[n]ormally a lack of fitness is indicated most clearly by a persistent inability to discharge, or unreliability in carrying out, significant obligations."
Under the Texas Rules, a "person" includes "a legal entity as well as an individual." The phrase "should know" when used in reference to a lawyer means "that a reasonable lawyer under the same or similar circumstances would know the matter in question."
Last, the Texas Rules provide the following definition for "Tribunal":
any governmental body or official or any other person engaged in a process of resolving a particular dispute or controversy. "Tribunal" includes such institutions as courts and administrative agencies when engaging in adjudicatory or licensing activities as defined as applicable law or rules of practice or procedure, as well as judges, magistrates, special masters, referees, arbitrators, mediators, hearing officers and comparable persons empowered to resolve or to recommend a resolution of a particular matter; but it does not include jurors, prospective jurors, legislative bodies or their committees, members or staffs, nor does it include other governmental bodies when acting in a legislative or rule-making capacity.
Texas Rules Terminology.