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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May a Texas school's lawyer speak directly with parents at an ARD special-education meeting when the parents are represented by a lawyer but bring only a nonlawyer advocate to the meeting?
The opinion concludes the school's lawyer may not. Rule 4.02(a) prohibits the school's lawyer from communicating, or causing or encouraging another to communicate, with the parents about the subject o…
Can a Texas lawyer hire an unaffiliated 'appearance lawyer' to cover a single hearing or deposition, and what duties does each lawyer take on?
The opinion concludes that a Texas lawyer may hire an appearance lawyer for a discrete task, but the appearance lawyer represents the client (not the hiring lawyer) and owes the full duties of compete…
When a client follows a departing Texas lawyer to a new practice, must the lawyer enter a new fee agreement, and what must the lawyer disclose about possible continuing obligations to the prior firm?
Per the Committee, the departing lawyer must enter into a new legal services agreement with the followed client; the lawyer cannot rely on the prior firm's contract as the basis for the new representa…
What employment-agreement restrictions on a Texas lawyer's departure from a law firm are impermissible under Rule 5.06(a), and what notice and file-copying obligations apply?
Per the Committee, Rule 5.06(a) bars employment-agreement provisions that impose an unreasonable minimum departure notice period (two to four weeks is ordinarily defensible), blanket prohibitions on a…
May a Texas nonprofit legal services agency obtain advance, intake-stage consent from each client to share confidential information with the agency's funders or their monitors during site visits or audits?
Per the Committee, no on the blanket approach: Rule 1.05 binds legal-aid lawyers, and Rule 1.05(c)(2) consent requires consultation that cannot meaningfully occur at intake before the lawyer knows the…
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 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 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 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 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…
Can a Texas lawyer put a binding arbitration clause covering fee disputes and malpractice claims in an engagement agreement?
Yes, if the terms are not unfair to a typical client willing to arbitrate, the client has enough information to make an informed decision, and the clause does not limit the lawyer's malpractice liabil…
As court-appointed defense counsel, can I give the court a detailed fee statement describing the records I reviewed, my research topics, and whom I contacted, to get paid?
Only with the defendant's informed consent. The Committee concludes the detailed statement reveals confidential information under Rule 1.05, so an appointed lawyer may submit a general description of …
Can I keep representing a client who disagreed with my settlement recommendation and then consulted a malpractice lawyer about my handling of the case?
Only conditionally. The Committee concludes that once a client has consulted a malpractice lawyer about the representation, the lawyer's personal interest in a possible malpractice claim creates a Rul…
Can a trade association's general counsel recommend an outside lawyer to members and round up other members for a joint lawsuit against a common supplier?
The Committee concluded that, on these facts, a trade association's general counsel could recommend qualified outside counsel and inform members of joint litigation against a common supplier without v…
Can I take a referral fee from an investment adviser for sending my client to them, paid as a percentage while the client stays invested?
The Committee concluded that a lawyer's receipt of ongoing solicitation fees from an investment adviser, paid while the lawyer's client keeps using the adviser, violates Rule 1.06(b)(2) because the la…
If my client's lawyer prepared a defective QDRO and won't fix it after I flag it, do I have to report them to the bar?
The Committee concluded the divorce lawyer must prepare the QDRO competently and correct material defects once flagged (Rule 1.01); the employer's reviewing lawyer must report the failure under Rule 8…
Can I follow my insurance-company client's litigation and billing guidelines when I am defending the insured?
The Committee concluded that defense counsel retained by an insurer may not agree to insurer litigation or billing guidelines that direct or regulate the lawyer's independent professional judgment in …
Can my insurance-company payer require me to send my fee statements to its third-party auditor without my client's consent?
The Committee concluded that a lawyer retained by an insurer to defend an insured may not, without the insured's informed consent, submit fee statements describing the legal services rendered to the i…
If I find out another lawyer at my firm gave a client clearly negligent advice, must I tell the client or report it to the State Bar?
The Committee concluded that an associate who discovers clearly negligent legal services by another firm lawyer must inform the firm's partners or shareholders; if he resigns before confirming the cli…
Can I secretly record a phone call I'm on without telling the other party, and can I advise a client to record a call they're on?
The Committee concluded that, reaffirming Opinion 392, a lawyer may not electronically record a conversation with another party without first informing that party (Rule 8.04(a)(3)); a lawyer may advis…
Can a Texas lawyer write an educational newspaper column on taxation that carries a board-certification disclaimer and gives no individual advice?
The Committee concluded that a lawyer may write such an educational newspaper column, with proper disclosure of the lawyer's name and a disclaimer of expert status, and that this activity is permitted…
Can a Texas lawyer put a clause in a retainer agreement charging interest on attorney's fees that go unpaid past a set date?
The Committee concluded that nothing in the Code prohibits charging interest on an unpaid fee balance, and it approved charging reasonable interest as long as the charge is reasonable, complies with c…
Can a Texas lawyer representing a party in a real estate deal take a fee that is a percentage of the title insurance premium paid by the title insurer?
The Committee concluded that a lawyer may accept a percentage of the title insurance premium only for services actually rendered to the title company; because the arrangement makes the title company a…
Does a Texas lawyer have to tell the client about every settlement offer the opposing party makes?
The Committee concluded that DR 6-101 and EC 7-7 and EC 7-8 require an attorney to disclose to the client all offers of settlement, along with the attorney's analysis and recommendation, because the d…
Can a lawyer send the opposing party copies of the letters the lawyer writes to opposing counsel?
The Committee concluded that, as a general rule, an attorney should not send copies of letters written to opposing counsel to opposing counsel's client; an exception is a demand that the opposing part…
While deposing a represented opposing party, can a lawyer advise that party about the law involved in the case?
The Committee concluded that an attorney may not, through the guise of a deposition, advise a represented opposing party about the law involved in the controversy, and this holds even where the opposi…
When an insurer hires a lawyer to defend both the insurer and the insured in a suit exceeding policy limits, must the lawyer tell the insured about the conflict and the excess-exposure risk?
Yes. The Committee concluded the insured is the defense lawyer's client, a conflict exists between insurer and insured, and Canon 6 requires the lawyer to inform the insured of the conflict, immediate…
Can a lawyer dismiss a client's pending suit at the client's request without contacting the attorneys of record already handling it?
No. The Committee concluded that a lawyer who dismissed a client's suit at the client's request, without contacting the attorneys of record who had been handling it and without their knowledge or cons…
Must an insurer-retained defense lawyer warn the insured of his Stowers rights against the insurer in time to demand a within-limits settlement?
The Committee did not resolve it. The eight members split 4-4 on whether an insurer-retained defense lawyer must inform the insured of his rights under Stowers, leaving it an open question. The member…
Can a claimant's lawyer write the unrepresented tortfeasor about the claim, and how much can the letter say about the law and the recipient's position?
The Committee unanimously agreed a claimant's lawyer may write the unrepresented opposing party to notify him of the claim and suggest he seek counsel, but a majority (5-3) held the letter at issue vi…
Before filing suit, can an injured client's lawyer write an unrepresented tortfeasor to offer settlement within policy limits, and warn of excess-judgment exposure?
The offer is allowed, the threat is not. The Committee held (9-1) it is not improper to write an unrepresented tortfeasor offering compromise within policy limits, but unanimously (10-0) that warning …
Must a lawyer turn over to federal investigators information his investigator obtained by illegally tapping an adverse party's phone?
No. The Committee concluded (5-2) that it would violate Canon 34 for the lawyer to reveal that information to federal investigators, and it declined (8-0) to answer whether disclosure would violate an…
Can a plaintiff's lawyer write directly to an unrepresented adverse driver to propose a settlement within his insurance policy limits?
Yes. The Committee concluded (6-2) that it is not improper for a plaintiff's lawyer to write an unrepresented adverse party offering to settle within policy limits, noting he might avoid personal liab…
Can a lawyer write legal articles for a trade publication, and can the articles answer readers' individual legal questions?
The articles are allowed, individualized advice is not. The Committee concluded (9-1) that a lawyer may write articles of a legal nature for a trade publication, provided he does not advise inquirers …
Can a lawyer submit a brief to the trial judge in a pending case without sending a copy to opposing counsel?
No. The Committee unanimously concluded (10-0) that a lawyer may not file a brief covering the principal points in a pending action with the trial judge without furnishing a copy to opposing counsel; …
Can a lawyer record a telephone conversation without telling the other person it is being recorded?
Under this 1953 opinion, yes. The Committee unanimously concluded (10-0) that recording a telephone conversation without advising the other person that a record is being made would not violate the Can…
Can a plaintiff's lawyer send a settlement demand directly to a represented defendant if he copies the defense lawyer and insurer?
No. The Committee concluded (9-1) that writing directly to a represented defendant, even with copies to defense counsel and the insurer, offering to settle and warning of excess-verdict exposure, viol…
Can a lawyer mail a client a magazine article, either with a fee statement or alone in a business envelope, that the lawyer thinks the client should see?
No. The Committee held (9-0) that both enclosing a magazine article with a statement for services and mailing the article alone in the lawyer's business envelope are an indirect form of solicitation i…
After a court-appointed attorney ad litem loses for absent defendants, can the same lawyer be hired by those defendants to reopen the judgment?
Yes. The Committee held (9-0) that a court-appointed attorney ad litem for nonresident defendants who, after judgment, is contacted by them and given evidence defending against the limitation claim ma…
Can a tax lawyer mail regular clients a monthly tax newsletter covering Treasury and court developments?
Yes, with limits. The Committee held (5-4) that a tax-specializing lawyer may send monthly tax letters in his own envelopes to regular clients, provided distribution is limited to regular clients and …
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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.