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 pay a nonlawyer-owned support services vendor based on a percentage of the lawyer's or firm's revenues, and may the lawyer own equity in that vendor?
Per the Committee, paying a vendor a percentage of the firm's revenues is impermissible fee sharing under Rule 5.04(a); equity investment in a nonlawyer-owned vendor that does not itself engage in the…
May Texas staff counsel employed by an insurance carrier represent an insured when the carrier weighs post-representation client and adjuster performance surveys in setting the lawyer's compensation and continued employment?
Per the Committee, yes: the Rules do not categorically prohibit such surveys. But the staff lawyer may not allow the survey system to interfere with the exercise of independent professional judgment o…
May a Texas plaintiff's personal-injury lawyer agree to personally indemnify the defendant group from medical liens and reimbursement claims as a condition of settlement, and may defense counsel insist on it?
Per the Committee, no on both: the personal indemnity violates Rule 1.08(d) (impermissible financial assistance), Rule 1.06(b)(2) (lawyer's-own-interest conflict), and Rule 2.01 (independent professio…
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…
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) …
If I have to withdraw from a contingent-fee case because of a nonconsentable conflict, can I still split the fee with the successor lawyer, or at least recover for the work I did first?
Per the Committee, a lawyer who withdraws for a nonconsentable conflict may not divide fees based on joint responsibility (the conflict bars it), and may not divide fees in proportion to services wher…
If I'm a staff lawyer employed by an insurance company to defend its insureds, do I have to follow the company's litigation guidelines, and what if it cuts my support staff?
Per the Committee, a staff lawyer may follow the insurer's guidelines only if the lawyer's affiliation with the insurer is disclosed to the insured, the guideline does not interfere with the lawyer's …
If I drafted a contract and may have to testify about it, can I or another lawyer in my firm still represent the client in the lawsuit over that contract?
Per the Committee, the lawyer-witness generally may not take an active role before the tribunal unless a Rule 3.08(a) exception applies, but may still help prepare the matter; with the client's inform…
Can a Texas lawyer who is named executor of an estate also serve as the lawyer for that executor, and if not, can someone else in the firm?
Per the Committee, yes in principle: a lawyer is not prohibited from serving as both executor and counsel for the executor, but must analyze Rule 1.06 first; if the representation will be adversely li…
If my law partner is a part-time municipal court judge, can I defend criminal cases in that municipal court before the other judges?
Per the Committee, only with the defendant client's informed consent: the part-time judge's personal-interest conflict under Rule 1.06(b)(2) is imputed to the law partner by Rule 1.06(f), so the partn…
Can a Texas lawyer who served as mediator draft the written settlement agreement memorializing the parties' deal, and can the mediator suggest extra terms not discussed in the session?
Per the Committee, yes; drafting a written agreement that memorializes the mediated terms is part of the mediator's traditional role and is not legal representation, so it does not violate Rule 1.11 o…
If an insurance company's staff attorney defends an insured, and the same insurer also insures the plaintiff and took a pre-suit statement from her, can the staff attorney keep defending the insured and use that statement?
Per the Committee, the staff attorney's duty runs only to the insured client (loyalty, zeal, and independent judgment); the attorney may use the plaintiff's statement, but if the representation reason…
Can a prosecutor (or anyone in the prosecutor's office) prosecute a defendant whose bail bondsman is the prosecutor's spouse?
Per the Committee, not unless the government consents under Rule 1.06(c), or unless on the specific facts the prosecution does not reasonably appear to be adversely limited by the prosecutor's respons…
If two lawyers are married and their firms represent opposing parties in the same matter, is there a conflict, can it be cured by consent, and is it imputed to everyone at each firm?
Per the Committee, marriage between lawyers at opposing firms does not automatically create a conflict, but it does under Rule 1.06(b)(2) when the representation reasonably appears to be adversely lim…
Can a lawyer who defended one insured and settled a claim against him later represent the same insurer in defending the other insured's UM/UIM claim arising from the same accident?
Per the Committee, yes; although the two matters are substantially related, the lawyer's two clients (the first insured and the insurer) are not adverse to each other (both are adverse to the claimant…
Can a Texas lawyer bill a client more for a third-party expense than the lawyer actually paid, and can the firm bill clients for services from a vendor owned by one of the firm's lawyers?
Per the Committee, absent disclosure and agreement a lawyer may not mark up a third-party expense above what the lawyer paid; and billing clients for a vendor whose ownership is materially similar to …
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 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 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 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…
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 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 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 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…
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…
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 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 agree to mediate a divorce between two unrepresented spouses and also draft the divorce decree and documents if they settle?
No. The Committee concludes a lawyer-mediator may not agree up front to both mediate and provide legal services, which violates Rule 1.11(b); and because a divorce is litigation, the lawyer cannot rep…
Can a public defender cure a conflict between two clients by handing one off to another lawyer in the same PD office, and may the lawyer keep representing the other client?
No to the handoff, yes to continuing. The Committee concludes a public defender's office is one 'law firm,' so under Rule 1.06(f) the conflict is imputed to every lawyer in it; but the lawyer may keep…
Can a Texas firm sue a city it used to represent on behalf of another city, and does screening the lawyers who handled the old matter help?
Yes if the new matter is unrelated, does not question the firm's prior work, and creates no reasonable probability of a Rule 1.05 breach; but screening does not help, because under Rule 1.09(b) one di…
After leaving a Texas regulatory agency, can a lawyer represent a client before that agency on a matter that started while the lawyer worked there but that the lawyer never worked on?
Yes. The Committee concludes Rule 1.10(a) bars a former agency lawyer only from matters in which the lawyer participated personally and substantially as a public employee; mere employment when a matte…
Can a prosecutor make a plea deal waive appeals for prosecutorial misconduct and ineffective assistance, and can defense counsel advise on and sign it?
The Committee concludes the rules do not bar a prosecutor from including such a waiver when the defendant is represented, but the waiver does not excuse the prosecutor from Rule 3.09; defense counsel …
Can a lawyer who owns a law-related consulting business represent a client in a matter against someone who is a customer of that business?
Yes, but only if the lawyer works through Rule 1.06(b)(2): the lawyer's interest in the business and its customers normally creates a conflict, so the representation is allowed only where it is not ad…
Can a city attorney advise a city ethics board investigating an ethics complaint filed against a majority of the city council?
No. The Committee concludes the city attorney's representation of the ethics board against most of the city council reasonably appears to be adversely limited by his own employment interests under Rul…
If a lawyer is appointed by a court as a receiver, can the lawyer pay part of the receiver fee to the lawyers for the parties?
No. The Committee concludes a lawyer/receiver may not pay any part of the receiver fee to the parties' lawyers, because accepting it would violate Rule 1.08(e) for those lawyers and would make the rec…
If a client files grievances and pro se motions against me but not about the issue still on appeal, do I have to keep representing the client on that appeal?
Generally yes. The Committee concludes the lawyer must continue the appeal on the remaining matter unless permitted to withdraw under Rule 1.15(b) and the court does not order continued representation…
Can a lawyer represent a school district buying land from someone who sits on the board of a bank the lawyer's firm represents in unrelated matters?
Yes. The Committee concludes there is no prohibited conflict: under Rule 1.12(a) the firm represents the bank as an entity, not its directors, so representing the school district against a bank direct…
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,…
Can my law firm lease its lawyers and staff from an employee leasing company that also leases personnel to other firms whose clients may be adverse?
Yes, with conditions. The Committee concludes a firm may use an employee leasing company for limited payroll and benefits services so long as the firm keeps exclusive control over hiring and terminati…
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 Texas lawyer co-own a chiropractor's practice, refer injury clients to that chiropractor, and share in the profits, including profits from the referred clients?
No. The Committee concludes the arrangement violates Rule 2.01 because it would prevent the lawyer from exercising independent professional judgment and giving candid advice about the client's medical…
If I'm a Texas lawyer serving as a state senator or representative, can I represent private clients in courts within my legislative district?
Yes. The Committee concludes that holding state legislative office does not by itself bar a lawyer from representing clients in city, county, and state courts in Texas, including courts in the lawyer'…
If I worked as a lawyer for a city, can the city's ethics code bar me from representing others before the city for two years, even on unrelated matters?
Yes. The Committee concludes the Disciplinary Rules do not prohibit enforcing a city ethics code's two-year bar on a former city lawyer representing others before the city: Rule 1.10 has no conflictin…
Can a Texas law firm let a group of doctors pay for its TV advertising in exchange for the expectation, but not the obligation, that the firm will refer clients to that group?
No. The Committee concludes the arrangement creates an unacceptable conflict: the firm's financial incentive to refer clients to the funding medical group means it cannot reasonably believe its repres…
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…
Can a Texas lawyer who is in-house counsel to a healthcare provider agree to represent the provider's injured patients at low cost in exchange for the provider referring those patients?
No. The Committee concludes the arrangement is prohibited: the low-cost services are a thing of value given for referrals under Rule 7.03(b), the agreement to drop patients who dispute the provider im…
Can I defend criminal cases in the same county where my spouse works as an assistant district attorney?
Only with consent. The Committee concludes a lawyer's representation of criminal defendants in the county where the lawyer's spouse is an assistant DA is adversely limited under Rule 1.06(b)(2); the d…
If I serve as a municipal court judge, can I also defend criminal cases where the city's police may be witnesses?
Only with consent. The Committee concludes a municipal court judge may not defend a criminal case where the city's police may be witnesses (or in a matter he adjudicated, or in his own court) unless b…
If I'm a lawyer serving as a county judge, can I represent private clients in the justice, county, and district courts of my own county?
Only with consent. The Committee concludes it is a conflict under Rule 1.06(b)(2) for a county judge, who presides over the commissioners court and is the county's chief budget officer, to represent p…
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 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…
Can I volunteer as the court's 'attorney of the day' if I am paid only when the defendant pleads guilty that day?
The Committee concluded a lawyer may not volunteer for a court 'attorney of the day' program in which the lawyer earns a more-than-nominal flat fee only if the defendant pleads guilty that day, becaus…
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 …
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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.