My firm runs and funds a foreign government's legal aid office for its nationals in Texas. Can we contact those nationals to solicit them, and can the office take a matter we're conflicted out of?

Plain-English summary

A Texas law firm served as legal counsel to a foreign government that sponsored a legal aid office for its nationals in Texas (handling commercial, civil-rights, tort, and matrimonial matters). The firm agreed to administer the office and provide part of its funding, with the rest from the foreign government; the office was staffed partly by its own lawyers and partly by firm partners and associates who volunteered. The office was a non-profit that took no client fees and carried a name tied to the foreign country but not to the firm. The relationship could be terminated at any time by any party. Firm and office lawyers proposed to contact foreign nationals in Texas to encourage them to use the office's or the firm's legal services.

On solicitation, the Committee concluded that all such solicitations must comply with DRs 7.01 through 7.07, including the bars on coercion, fraud, and misleading claims (DR 7.03(a)(1) and (3); DR 7.05) and the bar on giving value to a non-lawyer for referrals (DR 7.03(b)). It treated a foreign government acting for its nationals as functionally like a private non-profit created to benefit a class of persons, so the government and the legal aid office qualify as a "qualified non-profit organization" under the DR 7.03(a) exception allowing a lawyer for such an organization to communicate with its members to educate them about the law and the use of legal services. The Committee concluded that contacts about specific occurrences are permissible if carried out for the purpose of benefiting the foreign nationals, but a contact that results in fee-paying legal work for the firm falls outside the exception, because a significant purpose of such a firm contact would inevitably be to generate legal business rather than simply to meet the nationals' need for information.

On conflicts, the Committee concluded that because of the firm's role in administering and controlling the legal aid office, the office and its lawyers are "associated with" the firm for purposes of the conflict rules in DRs 1.06, 1.07, and 1.09 (see DRs 1.06(f), 1.07(e), and 1.09(b)). A matter the firm could not handle because of a disqualifying conflict therefore could not be handled by the legal aid office either; in that situation the office could refer the matter to a lawyer or firm not subject to the conflict.

Currency note

This opinion was issued in 1997, under the Texas Disciplinary Rules of Professional Conduct that took effect January 1, 1990. Texas did not adopt the ABA's Ethics 2000 revisions; its rules have been amended only piecemeal since (including the March 1, 2005 amendment to the fee rule, Rule 1.04, and the comprehensive 2021 revisions adopted by Texas Supreme Court order). The solicitation rules in Part VII were among the rules later revised. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can the firm and the legal aid office reach out to the foreign nationals?

A: The Committee concluded yes, within limits. Treating the foreign government and the office as a "qualified non-profit organization" under DR 7.03(a), it found in-person and telephone contacts about specific occurrences permissible if made for the purpose of benefiting the nationals and if all other DR 7.01 through 7.07 requirements are met.

Q: Can those contacts turn into paying clients for the firm?

A: The opinion concluded no. A contact that results in fee-paying legal work for the firm falls outside the non-profit exception, because a significant purpose of such a contact would inevitably be to generate legal business for the firm rather than simply to inform the nationals.

Q: If the firm has a conflict, can the legal aid office take the case instead?

A: The Committee concluded no. Because the firm administers and controls the office, the office is "associated with" the firm under DRs 1.06(f), 1.07(e), and 1.09(b), so a matter the firm is conflicted out of cannot be handled by the office; the office may refer it to an unconflicted lawyer or firm.

Q: Can the firm be paid by the foreign government for referrals to the office?

A: The opinion noted that under DR 7.03(b) a lawyer or firm may not give a non-lawyer (here, the foreign government) anything of value in exchange for referring clients to the firm or lawyer.

Background and rules framework

The opinion interprets the Texas solicitation rules, principally DR 7.03(a) (in-person and telephone solicitation and its qualified-non-profit-organization exception; related to ABA Model Rule 7.3) and DR 7.05 (written solicitations), together with DR 7.03(b) (no value to non-lawyers for referrals). On conflicts, it applies DRs 1.06, 1.07, and 1.09 (ABA Model Rules 1.7 and 1.9) and their association provisions in DRs 1.06(f), 1.07(e), and 1.09(b) (imputation; Model Rule 1.10), treating the firm-controlled legal aid office as associated with the firm.

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation of clients)
• MR 1.7 (conflict of interest: current clients)
• MR 1.9 (duties to former clients)
• MR 1.10 (imputation of conflicts)
• Texas Disciplinary Rules 7.03, 7.05, 1.06 (incl. 1.06(f)), 1.07 (incl. 1.07(e)), 1.09 (incl. 1.09(b))

See also

• TX Ethics Op. 524: Accepting a Referral From a Provider Who Solicited the Patient
• TX Ethics Op. 521: Soliciting a Prospective Client by Letter and Videotape
• TX Ethics Op. 527: Departed Lawyers' New Firm Adverse to a Former Firm's Client

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-519/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_519.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative. The source text encoded curly quotation marks and apostrophes with unreadable characters; these have been restored as standard quotation marks and apostrophes.

QUESTION PRESENTED

When a law firm, which represents a foreign government, administers and partially funds a legal aid office established by the foreign government to provide legal services for its nationals residing in Texas, may the law firm or the legal aid office initiate contacts with these foreign nationals to encourage them to utilize the legal services of the law firm or the legal aid office? May the legal aid office handle a case that the law firm could not handle because of a conflict of interest?

STATEMENT OF FACTS

A law firm in Texas is retained by a foreign government to serve as legal counsel to the foreign government. The foreign government sponsors a legal aid office to provide assistance to its nationals in connection with commercial, civil rights, tort, and matrimonial law matters. The law firm agrees with the foreign government to administer the legal aid office and provide some of the funding for the office. The remainder of the legal aid office's funding comes from the foreign government. The legal aid office is staffed partly with lawyers employed by the office and partly by partners and associated of the law firm who volunteer their time to assist in the work of the office. The legal aid office, which has a name indicating its relationship to the foreign country but not indicating a relationship to the law firm, functions as a non-profit entity and does not receive fees from clients. The relationship between the law firm on the one hand and the foreign government and the legal aid office on the other hand can be terminated at any time by any of the parties involved.

Lawyers with the law firm and the legal aid office propose to contact foreign nationals residing in Texas to encourage them to obtain legal services from the legal aid office or from the law firm.

DISCUSSION

All solicitations by Texas attorneys directed at foreign nationals with respect to legal services must comply with all relevant provisions of DRs 7.01 through 7.07 concerning the provision of information about legal services (all citations to DRs are to the Texas Disciplinary Rules of Professional Conduct as currently in effect). Among the applicable requirements of these rules are requirements that solicitations for legal services, regardless of whether in-person, by telephone, or in writing, not involve coercion, duress, fraud, overreaching, intimidation, undue influence, or harassment and not include false, fraudulent, misleading, deceptive, or unfair statements or claims (see DR 7.03(a)(1) and (3) and DR 7.05(a)(f1) and (3)). Also, under DR 7.03(b), a law firm or lawyer could not offer or provide services or anything else of value to a non-lawyer (in this case, the foreign government) in exchange for the nonlawyer's referring clients to the law firm or lawyer.

Under DR 7.03(a) uninvited in-person or telephone contacts by a lawyer concerning legal services relating to a matter arising out of a particular occurrence or event, or series of occurrences or events, generally are prohibited where a significant motive is the lawyer's pecuniary gain and the lawyer does not have certain types of past relationships with the person contacted. However, DR 7.03(a) provides that this limitation on in-person and telephone solicitation does not apply (if all other requirements are complied with) in the case of certain contacts on behalf of a qualified non-profit organization:
Notwithstanding the provisions of this paragraph, a lawyer for a qualified nonprofit organization may communicate with the organization's members for the purpose of educating the members to understand the law, to recognize legal problems, to make intelligent selection of counsel, or to use legal services.
A foreign government acting with respect to its nationals residing in Texas functions essentially like a private non-profit organization created to benefit a class of person. In fact, foreign nationals may be related more closely to the government of which they are citizens than are most intended beneficiaries of private non-profit organizations. Accordingly, the committee believes that, for the purposes of the above quoted exception to the general restrictions of DR 7.03(a) against solicitation in connection with specific occurrences or events, a foreign government should be treated as a "qualified non-profit organization." In the circumstances described, the legal aid office would also be a qualified non-profit organization for purposes of DR 7.03(a). Thus, even if lawyers with the law firm, acting either as lawyers for the foreign government or as volunteers for the legal aid office, contact foreign nationals with respect to specific events or occurrences that may make legal services desirable, such contact would not be prohibited solicitation if such communications are carried out "for the purpose" of benefiting the foreign nationals contacted and all other requirements are met. However, the committee believes that a contact that results in fee-paying legal work for the law firm would not be within this exception since one significant purpose of such a contact by the law firm's lawyers would inevitable be to generale legal business for the law firm rather than simply to meet the needs of the foreign nationals for information on legal services.

Because of the law firm's role in administering and controlling the legal aid office, the legal aid office and its lawyers would, in the view of the committee, be "associate with" the law firm for purposes of applying the conflict interest rules set forth in DRs 1.06, 1.07, and 1.09 (see DRs 1.06(f), 1.07(e), and 1.09(b)). Accordingly, a matter for which the law firm and its lawyers would have a conflict of interest that would preclude representation could not b e handled by the legal aid office. In such circumstances, it would be permissible for the legal aid office to refer the matter to a lawyer or law firm not subject to the conflict.

CONCLUSION

A law firm and its lawyers may cooperate with a foreign government to administer and support a legal aid office to provide legal services for the foreign government nationals who are present in Texas. In connection with this work, the law firm may communicate with, and cooperate with the foreign government and the legal aid office in communicating with, foreign nationals concerning legal services. However, in the case of in-person and telephone communications directed to persons who have no prior relationship to the lawyers involved and relating to specific occurrences and events, the law firm and its lawyers may not accept employment on a fee-paying basis arising from such communications. Because of the relationship between the legal aid office and the law firm, the legal aid office could not handle matters that the law firm could handle because of a conflict of interest.

Tex. Comm. On Professional Ethics, Op. 519 (1997)