In a small community with few lawyers, can a Texas lawyer advise the client to hire all of them so the opposing party can't find local counsel?

Plain-English summary

The opinion addresses a lawyer in a lawsuit filed in a community with a limited number of local lawyers who proposes to counsel the client to hire all of them, so the opposing party cannot retain local counsel.

The Committee notes the rules do not directly address this and that Rule 5.06 (agreements restricting the right to practice) does not apply, because it concerns partnership, employment, or settlement agreements, none present here. The operative rule is Rule 4.04(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. So the question is whether retaining all local lawyers has a substantial purpose other than delaying or burdening the opposing party.

The Committee says that cannot be answered in the abstract; it depends on the facts about whether other reasons exist for the hiring. It surveys authority on Rule 4.04-type provisions: Resolution Trust Corp. v. Bright (no violation where laborious witness interviews aimed at a truthful affidavit), In re Dvorak (discipline where a letter to an employer had no substantial purpose other than harassment), and Scales v. Committee on Legal Ethics (no violation where a letter to a husband's commanding officer aimed to stop abuse). It adds that if the only substantial purpose is to embarrass, delay, or burden, the conduct violates Rule 4.04(a) regardless of whether the other person was actually affected (Idaho State Bar v. Warrick), and cites a Virginia opinion treating a sham canvass of all small-community lawyers (to disqualify them) as a violation. So, on these facts, advising the client to retain all available local lawyers violates Rule 4.04(a) if there is no substantial purpose other than delaying or burdening the opponent.

In practice

Under this opinion, and under the Texas rules as they stood at the time, the propriety of advising a client to retain all local lawyers turns entirely on purpose. The Committee makes Rule 4.04(a) the operative limit and treats the existence of a substantial legitimate purpose as a fact question; conduct whose only substantial purpose is to delay or burden the opposing party violates the rule even if the opponent is not actually harmed. Rule 5.06 does not apply because no partnership, employment, or settlement agreement is involved.

Common questions

Q: Can I tell my client to hire every lawyer in town so the other side can't get local counsel?

A: Not if the only substantial purpose is to delay or burden the opposing party. Per Opinion 585, that violates Rule 4.04(a); whether a legitimate substantial purpose exists is a fact question.

Q: Does it matter whether the opposing party is actually left without counsel?

A: No, for the violation. The Committee says conduct whose only substantial purpose is to embarrass, delay, or burden violates Rule 4.04(a) regardless of whether the other person was actually affected.

Q: Does Rule 5.06 apply to this?

A: No. The Committee explains Rule 5.06 concerns partnership, employment, or settlement agreements restricting the right to practice, none of which is involved here.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 4.04(a) (a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person), corresponding to ABA Model Rule 4.4. It explains that Rule 5.06 (restrictions on the right to practice) does not apply on these facts.

Citations and references

Rules of Professional Conduct:

• MR 4.4 (respect for rights of third persons)
• Texas Disciplinary Rule 4.04(a)
• Texas Disciplinary Rule 5.06 (held inapplicable)

Cases:

• Resolution Trust Corp. v. Bright, 6 F.3d 336 (5th Cir. 1993), substantial purpose found
• In re Dvorak, 2000 N.D. 98, 611 N.W.2d 147 (2000), discipline for purpose of harassment
• Scales v. Committee on Legal Ethics, 191 W. Va. 507, 446 S.E.2d 729 (1994), legitimate purpose found
• Idaho State Bar v. Warrick, 137 Idaho 86, 44 P.3d 1141 (2002), violation regardless of actual harm

Other opinions cited:

• Virginia Standing Committee on Legal Ethics Opinion 1794 (2004): sham interviews of all small-community lawyers to disqualify them violate the equivalent rule

See also

• TX Ethics Op. 589: Reporting an Adverse Party's or Witness's Possible Crime
• TX Ethics Op. 590: Restrictions on a Departing Lawyer's Practice and Fees

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-585/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_585.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

In a community with only a limited number of lawyers available, may a lawyer counsel his client to retain all of the lawyers in that community for the purpose of denying local representation to the opposing party?

STATEMENT OF FACTS

A lawyer represents a party in a lawsuit filed in a community where there are a limited number of local lawyers. The lawyer proposes to counsel his client to hire all of the lawyers in that community with the result that the opposing party would not be able to employ a local lawyer for representation in the lawsuit.

DISCUSSION

The Texas Disciplinary Rules of Professional Conduct do not directly address this question. Rule 5.06 prohibits certain agreements restricting a lawyer’s right to practice, but this Rule concerns partnership, employment or settlement agreements, none of which is involved here. Thus Rule 5.06 does not prohibit the practice here in question.

A lawyer counseling his client to hire all lawyers in a community in order to deprive the opposing party of local representation could however violate Rule 4.04(a) in certain circumstances. Rule 4.04(a) provides: “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 . . . .” The question then becomes whether the proposed course of conduct has no substantial purpose other than to delay or burden a third person, in this case the opposing party.

This question cannot be answered in the abstract. The facts of the particular situation concerning the presence or absence of other reasons for hiring all lawyers in a community would determine whether the lawyer’s proposed course of conduct would violate Rule 4.04(a). See Resolution Trust Corp. v. Bright, 6 F.3d 336 (5th Cir. 1993) (no violation of Texas Disciplinary Rule 4.04(a) where purpose of “laborious” witness interviews was to obtain a truthful affidavit); compare In re Dvorak, 2000 N.D. 98, 611 N.W.2d 147 (2000) (lawyer disciplined under North Dakota’s equivalent of Texas Disciplinary Rule 4.04(a) because she had no substantial purpose, other than harassment, for writing a letter to a person’s employer pointing out the person’s allegedly false statements in litigation) with Scales v. Committee on Legal Ethics, 191 W.Va. 507, 446 S.E.2d 729 (1994) (no violation of West Virginia’s equivalent of Texas Disciplinary Rule 4.04(a) where wife’s lawyer’s letter to husband’s commanding officer was written for the purpose of stopping the husband from abusing the wife). If the only substantial purpose for a lawyer’s actions in a particular case is to embarrass, delay or burden another person, such conduct violates Rule 4.04(a) without regard to whether the other person was actually embarrassed, delayed or burdened. See generally Idaho State Bar v. Warrick, 137 Idaho 86, 44 P.3d 1141 (2002).

In this case, if there is no substantial purpose other than delaying or burdening the opposing party, then advising a client to retain all of the available local lawyers in the community where a lawsuit is filed would violate Rule 4.04(a). See Virginia Standing Committee on Legal Ethics Opinion 1794 (June 30, 2004) (noting that a lawyer would violate Virginia’s equivalent of Texas Disciplinary Rule 4.04(a) by directing a client to interview all the lawyers in a small community about a prospective legal matter with no intention of actually hiring any of those lawyers but instead with the purpose of sharing confidential information in those interviews and thereby disqualifying the interviewed lawyers from representing the opposing side).

CONCLUSION

Counseling a client to hire all the local lawyers in a community where a lawsuit is filed would violate the Texas Disciplinary Rules of Professional Conduct if such course of conduct had no substantial purpose other than to delay or burden the opposing party.

Tex. Comm. On Professional Ethics, Op. 585 (2008)