Texas Professional Ethics Committee Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the Texas Professional Ethics Committee, with full citations and source links on every page.
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If a Texas firm hires a non-lawyer employee (like a marketing assistant) who used to work for the opposing party's firm, must the firm withdraw, and must it screen the employee?
Per the Committee, hiring such a non-lawyer does not automatically disqualify the firm; under Rule 5.03 the firm must manage the employee to protect the former employer's client confidences, and if th…
Can a Texas government-agency lawyer defend the agency in other employees' furlough appeals when the lawyer herself may be furloughed and could file the same appeal?
Per the Committee, only if the agency consents after full disclosure and the lawyer reasonably believes the representation will not be materially affected by her own interests; consent alone is not en…
Can a Texas lawyer send confidential client information by email, including unencrypted email like Gmail?
Per the Committee, yes; given the present state of technology and email usage, a lawyer may generally communicate confidential information by email, but in some circumstances (highly sensitive informa…
Can a Texas lawyer run a pro bono nonprofit law firm under a name that describes the services and includes the name of someone who was never a lawyer in the firm?
Per the Committee, no; a name like 'Jane's Law Firm, A Free Legal Resource for Children with Autism' violates Rule 7.01(a) because it is a trade name, it is misleading as to the lawyer's identity, and…
Can a Texas prosecutor make criminal defense lawyers promise not to give file materials to their clients and waive court-ordered discovery as a condition of open-file access?
Per the Committee, no; because the Michael Morton Act (Tex. Code Crim. Proc. art. 39.14) requires an open-file policy without preconditions, a prosecutor who conditions the required disclosures on def…
Can a Texas lawyer represent a bankruptcy debtor when one of the creditors is a current (or former) client of the lawyer in other, unrelated matters?
Per the Committee, the representation does not violate Texas Rule 1.06 when the matters are not substantially related and the lawyer's judgment is not adversely limited, but the Fifth Circuit's curren…
Can a Texas lawyer have a debt management company that the lawyer owns refer its customers to the lawyer's own law firm for legal services?
Per the Committee, no for any legal matter related to the customer's debt situation, because the lawyer's ownership creates a Rule 1.06(b)(2) conflict that cannot be cured by consent; referrals are pe…
Can a Texas lawyer who is regularly hired by a financial planning company accept that company's referrals of its customers as new clients?
Per the Committee, generally yes for matters unrelated to the customer's financial or investment dealings with the company, but generally no (even with consent) where the representation involves finan…
Can a Texas solo lawyer's professional corporation use an assumed firm name that includes both the owner's name and the name of an employed (non-owner) associate?
Per the Committee, yes; an assumed name such as 'A & B, Attorneys at Law' is not a prohibited trade name under Rule 7.01 when it contains the names of lawyers who actually provide the firm's legal ser…
Can a Texas lawyer who retired from a part-time municipal court judgeship put 'Retired Judge' on letterhead and business cards?
Per the Committee, yes, but only if the lawyer actually retired (rather than merely left) in the ordinary sense of the word and the designation is not likely to mislead recipients about the lawyer's j…
Can Texas lawyers from two separate Texas firms run an out-of-state joint venture under a name that combines their two Texas firm names?
Per the Committee, generally no; even though the name might be allowed in the other state, the Texas rules against misleading combined firm names follow Texas lawyers, and Texas has the more significa…
Can a Texas lawyer make a client waive civil barratry remedies, settle a barratry claim with an unrepresented client, and must the lawyer report a barratry suit against themselves?
Per the Committee, a lawyer cannot use a client waiver to escape the disciplinary rules against barratry, and including such a waiver without explaining it may be ineffective can be a misrepresentatio…
Can a court-appointed criminal defense lawyer in Texas be paid a county fee schedule that pays more if the case goes to trial than if it ends earlier?
Per the Committee, yes; a county fee schedule that pays a fixed amount keyed to how far the case progresses is not a prohibited criminal contingent fee, as long as payment does not depend on the outco…
Can a Texas lawyer charge to review a pro se litigant's divorce self-help forms while requiring the litigant to sign that no lawyer-client relationship exists?
Per the Committee, no; advising a pro se litigant about their forms for a fee is the practice of law, so a signed disclaimer cannot erase the lawyer-client relationship and demanding one may itself be…
Can a Texas firm keep a lawyer's name in the firm name when that lawyer takes an out-of-state job that bars private practice, and can the lawyer stay a member?
Per the Committee, no, the firm may not keep the name of a lawyer barred from practicing with it, because that would mislead the public; but the lawyer may remain a member and keep a financial interes…
Can the general counsel of an entity jointly owned by two cities be an employee of one of those cities, which pays and can fire the lawyer?
Per the Committee, yes; being paid and employable-at-will by one city does not by itself create an impermissible conflict, as long as the entity consents, the lawyer's independent judgment and the rel…
Does a Texas lawyer have to report another lawyer to the bar for using a prohibited city-based trade name like 'CityX Law Group'?
Per the Committee, no; using a prohibited city-based trade name violates Rule 7.01 but, standing alone, is not serious enough to raise a substantial question about the other lawyer's honesty, trustwor…
Can a Texas district attorney publish on the office website the names of people charged with DWI over a holiday to deter drunk driving?
Per the Committee, yes; publishing the names of all those charged with DWI during a holiday period does not by itself violate the rules, provided the charges rest on probable cause, the purpose is to …
Can a Texas lawyer sign letterhead demand letters for a credit-repair company's customers the lawyer has never represented or even spoken with?
Per the Committee, no; providing signed letterhead letters that state or imply the lawyer represents the company's customers, when the lawyer does not, makes false and misleading statements to the rec…
Can two Texas lawyers agree to send each other all of their cases in the other's practice area, even if no fees are split?
Per the Committee, no; a mutual promise to refer all cases in the other lawyer's field is each lawyer giving something of value to the other to solicit employment, which violates Rule 7.03(c) even tho…
Can a Texas lawyer appear as a 'friend of the court' for a minor in immigration court without becoming the minor's lawyer?
Per the Committee, a lawyer may appear as a 'reputable individual' friend of the court only if the regulatory conditions are truly met, or candor and dishonesty rules are violated; and if the lawyer a…
After a lawyer leaves a firm, what must the firm do with the closed files of that lawyer's former clients, and when can it destroy them?
Per the Committee, the Texas rules set no detailed file-retention schedule, but their underlying principles control: protect client confidences, return files to a client on request, and do not destroy…
Can a Texas lawyer make a significant investment in a business that will compete with a former client whose confidential proprietary information the lawyer still holds?
Per the Committee, no, while the information remains relevant. Making a significant investment in a competitor uses the former client's confidential proprietary information to its disadvantage (Rule 1…
Can a replacement lawyer who knows of a letter of protection the prior lawyer signed to a healthcare provider disburse settlement funds to the client without paying the provider?
Per the Committee, no. Because the successor lawyer knows the healthcare provider claims an interest in the settlement funds under the letter of protection, Rule 1.14(c) requires keeping the disputed …
Can a Texas lawyer take a misdemeanor client's advance authorization to enter a no-contest or guilty plea in the engagement agreement, and can the lawyer do so while also being the client's bail bondsman?
Per the Committee, a lawyer may take advance plea authorization in the engagement agreement if, at that time, the client can make an informed decision about the plea. But if the lawyer is also the cli…
Can a Texas lawyer phone a real estate agent's client who asked the agent to have the lawyer call, even when the lawyer gives the agent ordinary holiday gifts?
Per the Committee, yes. Because the client requested the call through the agent, the lawyer is not soliciting someone who has not sought the lawyer's services, so Rule 7.03 and the barratry rule (Rule…
Can a Texas lawyer check a potential client's payment history in a lawyer-shared database, set fees based on it, and later report the client's payments back to the database?
Per the Committee, yes, with the client's informed consent. Rule 1.02(b) lets the lawyer and client agree at the outset that the lawyer may check the database and adjust or end the representation, and…
Can a Texas lawyer help a client pay the client's former lawyer to testify as a fact or expert witness in a civil case?
Per the Committee, yes. Rule 3.04(b)(2) lets the lawyer cooperate in paying the former lawyer reasonable compensation for loss of time as a fact witness, and Rule 3.04(b)(3) allows a reasonable fee fo…
Can a prosecutor require, and defense counsel agree, that documents the prosecutor produces may be shown to the defendant but not copied for the defendant?
Per the Committee, yes. Nothing in the Disciplinary Rules prohibits a prosecutor from conditioning production on, or defense counsel from signing, an agreement that the documents are State property, m…
Can Texas lawyers organize a law firm as a limited partnership whose general partner is an ordinary for-profit corporation rather than a professional corporation?
The Committee says the Disciplinary Rules do not prescribe firm-organization forms, but they bar sharing fees or partnering with non-lawyers and assisting unauthorized practice; whether this structure…
Can a lawyer licensed in both Texas and another state use a trade name allowed in that state but barred by Texas Rule 7.01, when practicing only in the other state?
Per the Committee, yes. Applying Texas's 'most significant relationship' conflict-of-laws test, Rule 7.01's trade-name ban does not reach a Texas-licensed lawyer's use of a trade name wholly in North …
Can a Texas law firm contract with a for-profit prepaid legal service company to serve its members at discounted rates, and can it take referral fees on matters it refers out?
Per the Committee, a firm may contract with a licensed for-profit legal service contract company to provide discounted services; the company's retained margin is treated as insurance premium, not shar…
Can a Texas district attorney investigate or prosecute a local official the DA's office previously represented on matters tied to the official's public duties?
Per the Committee, only if the former-client protections of Rule 1.09 and the current-client conflict rule (Rule 1.06) are both satisfied: no reasonable probability of misusing the official's confiden…
Can a Texas lawyer make settling a civil case contingent on the other side signing an affidavit whose content the lawyer's client must approve?
Per the Committee, no. Conditioning a settlement on an affidavit whose content must be acceptable to the client is paying compensation (a more favorable settlement) for particular testimony, which Rul…
Can an insurance defense lawyer send a settlement-payment notice directly to a represented claimant, without opposing counsel's consent, when a Texas Department of Insurance bulletin encourages it?
Per the Committee, no. The notice is a communication about the subject of the representation with a represented person, barred by Rule 4.02(a) absent the other lawyer's consent or authorization by law…
Can a Texas lawyer pay an annual local bar fee, used to supplement court-appointed counsel pay, in exchange for not being regularly appointed to represent indigent family court litigants?
Per the Committee, yes. Paying into a court-linked bar program that funds appointed counsel is not an improper attempt to avoid appointment without good cause under Rule 6.01; the rule's good-cause ex…
Can a Texas lawyer label a fee a non-refundable retainer when it actually pays for legal services up to trial, and deposit it in the operating account?
Per the Committee, no. A true non-refundable retainer pays only to secure the lawyer's availability and preclusion of other work, and only that may go in the operating account. A payment for future se…
Can a Texas lawyer take a contractual security interest in the client's cause of action to make sure the lawyer's contingent fee gets paid?
Per the Committee, no. Rule 1.08(h) bars a lawyer from acquiring a proprietary interest in the subject matter of litigation except a contingent fee under Rule 1.04 or a lien granted by law. A contract…
Can an insurance company's staff defense lawyer share office space with a non-lawyer adjuster from the same company who evaluates coverage on the lawyer's cases?
Per the Committee, yes, if the lawyer protects client confidences. The Rules do not bar a staff insurance lawyer from sharing office space with a non-lawyer adjuster, but the lawyer must take all reas…
Can a legal aid lawyer represent a client in a custody case against someone the same organization represented before, represents now, or screened but rejected for the same matter?
Per the Committee, it depends on the role. Against a former client in an unrelated matter, representation is allowed if there is no reasonable probability of misusing the former client's confidential …
Can a lawyer who is changing firms tell the prospective firm which clients and matters he has worked on so the firm can run a conflicts check, without breaching client confidentiality?
Per the Committee, yes, within limits. Rule 1.05(c)(4) permits the disclosure as necessary to comply with the conflicts rules (1.09 and 1.10) if four conditions are met: disclosure comes only after ot…
If a lawyer suspects the client paid the retainer with fraudulently obtained money, can the lawyer keep the refundable unearned portion in trust instead of returning it, where no one has claimed the funds?
Per the Committee, no. With no claim asserted by anyone, Rule 1.14(b) requires the lawyer to return the refundable unearned fee to the client and account for it; the lawyer's suspicion about the funds…
When a partner leaves a Texas firm to start his own practice, can the remaining lawyers keep his name in the firm name if he consents?
Per the Committee, no. A lawyer who leaves to keep practicing independently is not a retired or deceased member, so Rule 7.01(a)'s exception does not apply; keeping his name violates Rule 7.01(a) and …
Can a Texas lawyer privately lobby members of a state agency's board about a proposed rule, and about a permit the lawyer's client plans to seek under that rule?
Per the Committee, ex parte contact about a proposed regulation is allowed because the board is acting legislatively, but once the client decides to seek a permit the matter is pending and Rule 3.05 b…
May a lawyer for an insolvent corporation tell the corporation's creditors that the owner-manager is breaching his fiduciary duty, when the owner has told the lawyer to stay silent?
Per the Committee, only in narrow circumstances. The lawyer may reveal the advice to creditors only if the breach results in fraud by the corporation, the lawyer has tried and failed to dissuade the c…
Can a Texas lawyer turn over unclaimed funds held in trust to the state Comptroller as abandoned property, and report the owner's identifying information, without violating the trust-account and confidentiality rules?
Per the Committee, yes. Nothing in the Rules prohibits delivering presumed-abandoned trust property to the Comptroller; Rule 1.14(b) requires delivery of property a third person is entitled to receive…
Can an assistant city attorney refuse to stop representing the city after being discharged, on the ground that civil service rules protect the lawyer's job?
Per the Committee, no. Rule 1.15(a)(3) requires a lawyer to withdraw when discharged, with or without good cause, unless a tribunal orders otherwise. The lawyer's civil-service employment protections …
Does a government agency's lawyer have to make sure the agency's non-lawyer enforcement officers don't contact a represented regulated person directly?
Per the Committee, only over officers the lawyer directly supervises. Rule 4.02(a) bars the agency lawyer from contacting a represented person or causing or encouraging others to, but where the lawyer…
Can a lawyer who is also his client's bail bondsman add language to the bond letting the lawyer enter a no-contest plea if the client misses a court appearance?
Per the Committee, no, for three reasons. The added bond term is an unfair business transaction with the client under Rule 1.08(a)(1), it creates a non-waivable conflict between the lawyer's bondsman …
Can a Texas firm keep representing a client against an opposing party after hiring an associate who used to represent that opposing party, if the firm screens the new associate?
Not without the adverse party's consent if there is a reasonable probability the associate's prior representation implicates Rule 1.05 confidences or the matters are substantially related. The Committ…
Can a Texas lawyer be a partner in a firm whose other partners are licensed only in other states or countries and who sometimes do legal work in the Texas office?
Yes. The Committee concludes a lawyer licensed elsewhere is a 'lawyer,' not a 'non-lawyer,' under Rule 5.04, and on these facts the out-of-state and foreign partners' occasional Texas work is not unau…
Can a Texas lawyer take an assignment of a client's insurance policy proceeds to pay legal fees?
Yes, with limits. The Committee concludes an assignment for completed work is governed only by Rule 1.04; for uncompleted work it is allowed if the policy is not the subject of the matter and the proc…
Can a Texas lawyer use public-record information learned while representing a former client against that client, for example to collect unpaid fees?
Generally no, unless the information is generally known or an exception applies. The Committee concludes such public-record information is confidential under Rule 1.05, but Rule 1.05(c)(5) lets the la…
Can a Texas lawyer bill a client more for a third-party expense (such as medical bills negotiated down) than the lawyer actually paid?
No, absent disclosure and agreement. The Committee concludes that recouping more than the amount actually paid, including not passing on a discount, violates Rules 1.04(c), 1.03(b), and 8.04(a)(3) unl…
After committing malpractice, can a Texas lawyer settle the client's malpractice claim with the client when the client has no independent counsel?
Yes, but only after the lawyer ends the representation in the affected matter, discloses the malpractice, advises the now-former client in writing that independent representation is appropriate, and a…
Can a Texas lawyer share legal fees with, or honor a referral agreement signed by, a lawyer who was suspended from practice?
No. The Committee concludes a suspended lawyer is a non-lawyer for purposes of Rule 5.04(a), so sharing or promising to share fees with one is prohibited, and a referral agreement with a suspended law…
Can three separate Texas law firms run joint ads under the name of one of them plus the word 'Group'?
No. The Committee concludes that a name like 'Jones Smith Group' is a trade name, and because Rule 7.01(a) bars practicing under a trade name, using it in advertising is prohibited by Rule 7.01(e) and…
Can a Texas law firm make a member agree that, if he leaves, he won't solicit the firm's clients and will pay the firm a percentage of fees he later earns from them?
No. The Committee concludes the agreement violates Rule 5.06(a) because it restricts a lawyer's right to practice after leaving, and the fee-payback term separately violates Rule 1.04(f) because it di…
Can a Texas lawyer report an opposing party's or witness's possible crime that the lawyer learned about while representing a client, and must the lawyer do so?
The rules do not require it. The Committee concludes a lawyer may report such activity, assuming it is not contrary to the client's interests and does not misuse client confidences, unless the only su…
In a Texas DTPA case, can a lawyer use a normal contingent fee agreement even when the client ends up keeping part of the statutory attorneys' fee award?
Yes. The Committee concludes that because a DTPA attorneys' fee award belongs to the client, not the lawyer, a contingent fee that leaves the client part of that award is not improper fee-sharing with…
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Legal ethics opinions from the Texas Professional Ethics Committee interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.