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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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…
May a Texas lawyer agree to be personally bound by a non-disparagement clause or a marketing-use non-disclosure clause in a client's settlement agreement?
The Committee concludes that under Texas Disciplinary Rule 5.06(b) a lawyer may not be a party to a non-disparagement clause that restricts statements the lawyer might make in the practice of law, and…
What ethical duties under the Texas Disciplinary Rules of Professional Conduct does a lawyer carry when using generative AI in practice?
Per the Committee, a Texas lawyer using generative AI must satisfy technological-competence duties under Rule 1.01, protect confidential client information under Rule 1.05 (which may require client co…
May a Texas lawyer turn over a deceased client's closed litigation file to the executor of the decedent's estate when the file does not relate to the estate or its administration?
Per the Committee, the lawyer has discretion (but is not required) to reveal a deceased client's confidential information to the executor under Rule 1.05(c)(3) (representative-disclosure exception), p…
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…
When a Texas lawyer moves from a private firm that represents public entities to a private firm that is adverse to those entities, what conflicts apply, does the 'generally known' exception save the new firm, and is Rule 1.10 screening available?
Per the Committee, the migrating lawyer's personal representation of a public-entity client at the prior firm creates Rule 1.09 former-client conflicts that are imputed to all lawyers at the hiring fi…
If my client lies during the other side's deposition cross-examination, do I have to correct it or tell the court?
Per the Committee, no; a lawyer has no duty to correct a client's intentionally false statements elicited by opposing counsel on cross-examination at a deposition, because mere silence is not 'assisti…
A spouse once consulted my partner about a divorce but never hired the firm. Can I now represent the other spouse against her?
Per the Committee, a lawyer owes a former prospective client a duty of confidentiality under Rule 1.05, and a consultation can create a disqualifying adverse-limitation conflict under Rule 1.06(b)(2) …
Can a Texas lawyer ask current and former clients to leave positive reviews and star ratings on Google or social media?
Per the Committee, yes; the rules do not prohibit a lawyer from encouraging current and former clients to post positive online reviews or ratings, provided the lawyer does not encourage them to make s…
When I leave my firm, can I take the firm's only copy of the client files I worked on and delete those files from the firm's systems?
Per the Committee, no; a departing lawyer may not remove the firm's only tangible copy of client files or delete client files, documents, and data from the firm's electronic repositories and devices w…
Can a Texas lawyer store confidential client information in the cloud or use cloud-based software to prepare client documents?
Per the Committee, yes; a lawyer may use cloud-based storage and document-preparation systems for confidential client information, but must take reasonable precautions and stay alert to data-breach an…
Can a lawyer ask other lawyers (in an online discussion group or in a one-on-one consultation) for advice that will help a client, and how much can the lawyer say about the client's matter?
Per the Committee, informal lawyer-to-lawyer consultation is not categorically prohibited; the inquiring lawyer should keep to general or abstract questions, and may reveal a limited amount of unprivi…
When I leave my law firm, can I copy and keep my clients' documents (for example to reuse as forms) even when the client isn't following me to the new firm?
Per the Committee, a departing lawyer may, at the lawyer's own expense, copy and retain documents from matters the lawyer personally handled (no prior-firm or client consent needed if responsive to fi…
If an insured stops cooperating in the defense the insurer is paying for, can the insurer-retained lawyer tell the insurance company about the non-cooperation when withdrawing?
Per the Committee, the lawyer may withdraw for the insured's failure to cooperate (Rule 1.15(b)), but the non-cooperation is the insured's confidential information; absent the insured's consent the la…
What must a Texas lawyer do to keep confidential metadata out of documents they send, and what may a lawyer do with metadata they receive from opposing counsel?
Per the Committee, a lawyer's duty of competence and confidentiality (Rules 1.01 and 1.05) requires reasonable measures to remove confidential metadata before sending documents; on the receiving side …
If I receive the opposing party's confidential information, whether a client stole it or it was sent to me by mistake, do the Texas rules require me to notify opposing counsel?
Per the Committee, no; Texas has not adopted ABA Model Rule 4.4(b), so failing to notify opposing counsel does not by itself violate the Texas rules, whether the information was taken without consent …
Can a Texas lawyer post a public reply to a former client's negative online review, and how much can the lawyer reveal to rebut it?
Per the Committee, a lawyer may not reveal any confidential information just to answer a negative online review, because Rule 1.05's exceptions apply only to formal actions, proceedings, or charges, n…
Can a Texas lawyer sell delinquent client accounts receivable (unpaid earned fees) to a collection or factoring company for a percentage of the amount owed?
Per the Committee, only with the client's consent after consultation; selling the receivable discloses confidential information, and unlike suing to collect a fee or using a collection agency under th…
Can a Texas lawyer hire a collection agency to collect unpaid attorney's fees, and can the lawyer report a nonpaying client to a credit bureau?
Per the Committee, a lawyer may use a collection agency to collect past-due fees if five conditions are met (no longer handling the matter, fee not unconscionable, other reasonable collection efforts …
Does a Texas law firm's website that invites prospective clients to email the firm need a confidentiality warning, and can an accepted warning let the firm use the information against the sender?
Per the Committee, the rules do not require a warning, but without an effective warning a firm that solicits emails may owe a duty to protect a prospective client's confidential information (which can…
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 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…
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 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 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 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…
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 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 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…
Can a Texas lawyer keep representing a client when a former client's conduct turns out to be material to the case?
Yes, if the new matter is not adverse to the former client, or if it is adverse but does not question the lawyer's prior work, is not the same or substantially related, and carries no reasonable proba…
Can a Texas lawyer secretly record a phone call with a client or a third party without telling them the call is being recorded?
Generally yes. The Committee concludes the rules do not bar a lawyer from making an undisclosed recording of a call the lawyer is on, provided recordings involving a client serve a legitimate purpose,…
Can a lawyer hand documents containing privileged client information to an outside copy service or other contractor without getting the client's express consent first?
Yes. The Committee concludes that, unless the client has instructed otherwise, giving privileged materials to a contractor hired to help with the representation (such as a copy service) is not 'reveal…
When I leave my firm, can I take a client I worked on there and switch the matter to a contingent fee, using what I learned while at the firm?
Yes, with safeguards. The Committee concludes a departing lawyer may solicit and accept a firm client on contingency for a matter the lawyer handled, but must comply with Rules 1.03, 1.04, 1.05, 1.06,…
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 a law firm share confidential client information with a collection agency's employees if they sign on as 'borrowed employees' of the firm to collect the firm's past-due fees?
No, not without each affected client's prior informed consent. The Committee concludes that labeling collection-agency employees 'borrowed employees' does not make them firm employees under Rule 1.05(…
As insurance defense counsel, can I email my fee statements to the insurer's third-party auditor and pay the auditor a percentage of my fee?
Not without the insured's informed consent, and never the percentage payment. The Committee concludes the fee statement is confidential under Rule 1.05, so disclosing it to the auditor requires the in…
If I serve on a city council, can I discuss and vote on a matter involving a client of my former law firm when I never worked on that client's matter?
Yes, with conditions. The Committee concludes a lawyer on a city council may participate and vote on a matter where the former firm represents a client, provided the lawyer did not personally represen…
If I am elected district attorney, can I prosecute someone I previously defended as their criminal defense lawyer?
The Committee concluded a newly elected DA may not prosecute a former client's probation revocation in a case the lawyer defended (regardless of consent), may not prosecute a former client in a new ca…
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…
Are a government lawyer's telephone records confidential under Rule 1.05, or must they be released under the Texas Open Records Act?
The Committee concluded that a government lawyer's telephone records relating to client work are normally confidential information under Rule 1.05(a), and Rule 1.05(b) bars disclosure unless an except…
Can our firm's in-house CPA testify as an expert witness in a case the firm is handling?
The Committee concluded that a lawyer who uses an in-house accountant as a testifying expert in the firm's own case violates Rules 5.03, 3.08, and 1.05, unless the accountant's testimony is of the sam…
Can a lawyer give the Texas Workers' Compensation Commission a general description of attorney-client conferences to get a fee approved, without breaching client confidentiality?
The Committee concluded that a general description of the nature of attorney-client conferences (for example, 'discussed client's medical treatment') is confidential but not privileged information, an…
Does a criminal defense lawyer have to correct a prosecutor's wrong statement in court that the defendant has no prior convictions, when neither the lawyer nor the defendant said anything false?
The Committee concluded the lawyer need not correct the prosecutor's mistaken statement and may remain silent, because neither the lawyer nor the client made a false statement and the client committed…
Can a law firm hand a collection agency the client's name, bills, fee agreement, and file to collect unpaid legal fees?
The Committee concluded that a lawyer may not disclose confidential client information to an independent collection agency to collect fees unless the client consents after consultation. Most fee and s…
If a jointly defended co-defendant turns hostile and hints he may change his testimony, can the firm share his recorded statement with the other parties, and must it withdraw?
The Committee concluded the firm may not disclose the former client's transcript to the insurer, the insured, or the other ex-employee. Only if the client actually moves to commit perjury may the firm…
Can a law firm let clients pay legal fees by borrowing from an independent finance company that pays the firm at least 90% of the amount borrowed?
The Committee concluded the arrangement is not prohibited and is a finance arrangement, not fee-splitting, because the finance corporation neither solicits clients nor performs legal services, so reta…
Can a firm jointly represent an employer and employee co-defendants under an advance agreement that lets it share confidences and keep representing the employer if a conflict arises?
The Committee concluded the arrangement was permissible if the firm fully informed both clients of the implications before they signed. Consent to disclose confidential information under Rule 1.05(c)(…
If a law firm pledges its accounts receivable to a bank, can it give the bank its clients' names and the amounts each client owes?
The Committee concluded it cannot, absent the clients' informed consent. Both the client names and the amounts owed are confidential information under Rule 1.05, which protects all client information …
Must a lawyer tell the bankruptcy court that a former client secretly got back the settlement funds at issue and put them in a trust, even though the client invokes privilege?
The Committee concluded the lawyer must first make a good-faith effort to get the former client to authorize disclosure to the bankruptcy court, and if that fails, must disclose the fact without the c…
Must an appointed criminal defense lawyer tell the court that the client lied about being indigent, or later became able to afford a lawyer?
The Committee concluded that disclosure is required. Rule 3.03(a)(2) requires a lawyer to disclose a fact to a tribunal when necessary to avoid assisting a criminal or fraudulent act, and Rule 1.05(f)…
If a law firm hires a secretary or legal assistant who worked for the opposing firm in a pending case, must the hiring firm be disqualified?
The Committee concluded that disqualification is not automatic. The current rules do not require automatic disqualification to avoid an appearance of impropriety, but Rule 5.03 requires the supervisin…
Can a lawyer sell unpaid client legal bills to a factoring company to collect on them?
The Committee concluded a lawyer may not sell delinquent accounts receivable to a third-party factoring company unless each affected client has, after consultation, already consented to the disclosure…
If a prospective client gives a lawyer documents that are public record, can the lawyer's partner use that information against the prospective client for an existing client?
The Committee concluded the materials were not confidential. Because the documents were matters of public record, they were neither a 'confidence' (privileged information) nor a 'secret' under DR 4-10…
Can a lawyer turn a client's bounced check for fees over to the district attorney, and warn the client by letter that the check will be prosecuted unless it is paid?
The Committee concluded that turning a client's dishonored check over to the district attorney is not unethical, because the lawyer is the victim of the crime, and a warning letter is permissible only…
Must a lawyer reveal a client's fraud that happened before the lawyer was hired, and what must the lawyer do if the client may have to testify about it?
The Committee concluded that DR 4-101 imposes no duty to reveal a client's pre-representation fraud absent an exception, that DR 7-102(B)(1) is by its terms limited to fraud committed during the repre…
Can a law firm keep representing a bank in all its matters while suing another bank, once a single holding company comes to own both banks?
The Committee concluded that the firm may not continue representing Bank A on virtually all matters while suing Bank B once a single holding company owns both, because the firm would in effect be repr…
After a joint representation ends, can a lawyer reveal what one former co-client told him, and may the lawyer testify when that co-client later commits perjury against the other client?
The Committee concluded that the lawyer may not disclose the versions of the facts a co-client gave while the lawyer represented him, even after the relationship ends, but may disclose what the co-cli…
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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.