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I am having difficulty with my attorney, who can I talk to?

Does a lawyer ever have any duty of confidentiality prior to undertaking representation of a client?

Yes, she may. (See T.D.R.P.C, Preamble, Sec. 12; Rule 1.05(a); and T.R.E., Rule 503(a)(1) ).

True or false: Whether one is considered a “client” of a lawyer under the Texas Rules of Evidence is determined by whether or not she has, either expressly or by implication, entered into an attorney/client relationship?

Other than when authorized by the client to do so, when can a lawyer ethically share with other lawyers outside her firm privileged information learned about a client during the course of representation of that client? (one correct response is sufficient)

When the client consents after consultation; B. when the lawyer has reason to believe it is necessary in order to comply with the Disciplinary Rules (DR’s), a court order, or relevant law; C. to the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client. D. To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyers associates based upon conduct involving the client or the representation of the client; E. When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act. F. To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyers services had been used.

Is a mediator considered an “adjudicatory official,” and thus must lawyers, in their dealings with mediators, abide by all ethical rules dealing with judges and other adjudicatory officials, as for example with respect to ex parte communications?

Yes. The DR’s define an adjudicatory official as a “person who serves on a tribunal.” Tribunal is defined as “any…body or official, or other person” including “arbitrators, mediators, hearing officers, and comparable persons empowered to resolve or to recommend a resolution of a particular matter.”

May a lawyer ethically record a telephone conversation with a client without the client’s knowledge and consent?

Yes. This rule has changed as of November 2006. Prior to that time, it would have been considered a violation under Texas Ethics Committee Opinions 392 (1978), and 514 (1996). Those prior opinions were overruled in Opinion 575 (Nov. 2006). However, the lawyer may not affirmatively misrepresent to the client that the conversation is not being recorded, and the recording must be for a legitimate purpose, not be a violation of law, and be treated as any other confidential client information.

Can a lawyer who was an employee of a state regulatory agency later represent a client before that same agency in a matter that originated while the lawyer was working at the agency?

Yes. Under some circumstances. Texas Ethics Committee Opinion 574 (2006) addresses this issue and holds that the lawyer may do so if the lawyer had no personal and substantial participation in the matter as an employee of the agency.

Is there currently a DR that expressly and specifically forbids lawyers from having intimate relationships with their clients during the course of the attorney-client relationship?

No. Several such proposals are currently under consideration, however, and there is an ABA model rule on the subject. Also, there are Texas DR’s already in effect that generally prohibit deception or taking unfair advantage of a client. See, e.g., DR 4.01.

Other than when required to do so by law or to prevent a crime or fraud by the client, under what circumstances may a lawyer reveal to her spouse unprivileged information about a case?

Only:

(1)When impliedly authorized to do so in order to carry out the representation.

(2) When the lawyer has reason to believe it is necessary to do so in order to:

(i) carry out the representation effectively;

(ii) defend the lawyer or the lawyers employees or associates against a claim of wrongful conduct;

(iii) respond to allegations in any proceeding concerning the lawyers representation of the client; or

(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.

See DR 1.05 (d), the so-called “anti-gossip” rule.

When can a lawyer accept employment in a matter that she should know is beyond her competence?

Only when:

(1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or

(2) the advice or assistance of the lawyer is reasonably required in an emergency and he lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances. See DR 1.01 (a).

Is negligent malpractice, like missing a discovery deadline, a “grievable” offense, i.e., sufficient grounds for a grievance?

   No, not without more or without violation of a specific rule. Professional negligence, in and of itself, is not a separate offense under the DR’s. In fact, Rule 1.01 defines “neglect” only as either “inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients” or “frequently” failing “to carry out completely the obligations that the lawyer owes to a client or clients.” 

What must a lawyer do if, during the representation of a client, she comes into possession of a check made payable jointly to her and someone else?

She must keep such funds separate from her own property in a separate account, designated as a trust or escrow account, maintained in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. She must also promptly notify the client or third person having an interest in the money. Except as otherwise permitted by law, rule, or by agreement with the client, a lawyer must promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. See DR 1.14 (a) and (b).

What must a lawyer do, if during representation of a client, she comes into possession of a check made payable jointly to her and her client and a dispute arises concerning the proper division of the funds?

The portion in dispute shall be kept separate by the lawyer until the dispute is resolved, and the undisputed portion shall be distributed appropriately. See DR 1.14 (C)

In a deposition, a lawyer insists upon asking witnesses who their elementary school teachers were, and similar irrelevant questions, for the purpose of delaying the proceedings and running up everyone’s fees, including his own. What is the relevant standard by which to judge his actions for grievance purposes?

The relevant standard is that it is an offense to take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter. See DR 3.02.

Farrow Darrow, a client of your firm, proposes to hire you to defend him from a criminal DWI charge, his first offense. He is willing to pay you a $5,000 non-refundable retainer to cover your work, and a bonus of $5,000 if you get him probation and $10,000 if you get him off completely. You don’t know, but you think you can probably get him probation, and there is somewhat less chance that you can get him acquitted. Can you sign an agreement to that effect?

No. It is unethical to charge a fee contingent upon results of a criminal case. See DR 1.04(e).

If you do charge such a fee, what remedies would Darrow have besides filing a grievance against you and/or suing for damages?

He could also sue for forfeiture of the fee for breach of fiduciary duty. See Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999).

You represent two clients in different matters, who are not suing each other and have no claims against each other. However, the relevant law is unsettled and the legal positions you are taking in the two matters are inconsistent. What normally determines whether you have a conflict of interest that would require you to withdraw?

Whether the two matters are pending or will be decided by the same court or tribunal. The Comment to DR 1.06, paragraph 10, provides that “A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court.”  

Under what circumstances may lawyers who are not current or former partners or associates split a fee that is legal in amount, assuming written client consent prior to the arrangement?

A division or arrangement for division of a fee between lawyers who are not in the same firm may be made only if the division is:
(i) in proportion to the professional services performed by each lawyer; or
(ii) made between lawyers who assume joint responsibility for the representation.
See DR 1.04 (f).

When can a lawyer represent opposing parties in the same litigation?

Never. See DR 1.06 (a).

What two things must a lawyer do before representing a person whose interests are materially adverse to another client’s interests in a substantially related matter?

(1) the lawyer must satisfy himself  that the representation of each client will not be materially affected; and
(2) each affected or potentially affected client must consent to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any. DR 1.06 (c)

How does one enforce a contingent fee agreement that is not in writing?

One doesn’t because one can’t. DR 1.04  (d).

What two things must a lawyer do under the DR’s once a contingent fee representation is concluded?

A lawyer must: 1. promptly turn over to the client and any others money in his possession to which they are entitled; and 2. provide the client with a written statement describing the outcome of the matter and showing the remittance to the client and the method of its determination. DRs 1.04 (d) and 1.14.

When may a lawyer advise a non-client to refuse to give voluntary information to an opposing party?

Only when the person is a relative or an employee or other agent of a client; and the lawyer reasonably believes that the persons interests will not be adversely affected by refraining from giving such information. DR 3.04(e).

You get an audit inquiry from an accountant purporting to be working for a client of yours. They want privileged information on pending litigation you are handling for the client. What information can you give them without the client’s express consent?

Probably none, without the client’s informed consent. First, the lawyer must be sure the accountant really works for the client. Second, the lawyer can only reveal information in accordance with DR 1.05. This rule prohibits disclosure of privileged client information to anyone other than ‘A representative of the client” unless the client consents or is expressly authorized to do so. Representative of the client is defined b y the rules of evidence as “i) a person having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client or (ii) any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.” T.R.E. 503(a)(2). Further, there is authority for the proposition that third party auditors are not “client representatives.” Ethics Opinion 532 (2000). Presumably this is because they normally are uninvolved in obtaining or effectuating the actual legal representation of the client.  Finally, under the Commentary to DR  2.02 entitled Financial Auditors’ Request for Information 7. The Commentary states “When a question concerning the legal situation of a client arises at the instance of the client’s financial auditor and the question is referred to the lawyer, any response by the lawyer should be made in accordance with procedures recognized in the legal profession.” The Comments make it clear that lawyers are expected to answer audit inquiries.  However, the Rules and Comments also make it clear that the lawyer should consult with the client and get any necessary consent in accordance with the statement “procedures recognized in the legal profession”.

You negotiate a settlement for a client in a contingent fee case. The defendant is concerned about what you have uncovered and about other similar cases against it and wants a provision in the settlement agreement that you will not represent other similarly situated plaintiffs against it. They will pay substantially more money to your client for a settlement including these terms, and your client is fully informed and is in full agreement. Can you agree to the deal?

No. DR 5.06 states that A lawyer shall not participate in offering or making:
. . .  agreement that restricts the rights of a lawyer to practice after termination of the relationship. . . or an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a suit or controversy.

You negotiate a settlement for a client in a contingent fee case. The defendant is concerned about what you have uncovered and about other similar cases against it and wants a provision in the settlement agreement that you will now accept a sizeable retainer to act as their lawyer in any other cases of a similar nature. They are willing to pay your client more for a settlement that has this provision. Can you accept?

Almost certainly not. Certainly not without fully informed client consent. You are still representing the plaintiff in that litigation and can not simultaneously represent the adverse party in that litigation, nor in substantially related other matters without client consent, and until you first satisfy yourself that the representation of each client will not be materially affected. How will one do this? What if a dispute develops over the terms or performance of any settlement agreement? Moreover, this arrangement still doesn’t avoid practice limitation concerns. In an Oregon case, In re Brandt (Or. No. S45122, 9/14/00), the Oregon Supreme Court suspended two lawyers who, while negotiating a settlement of their clients’ case, agreed to work for the client’s adversary in the future.  The court held the lawyers’ retainer agreements with the client’s opponents indirectly restricted their right to practice law in connection with settlement in violation of the Oregon equivalent of Texas DR 5.06.  Texas Ethics Opinion 505 (1995) opines that “(1) A settlement agreement which exceeds current limitations placed on solicitation would be a limitation on the practice of law and therefore a violation of Rule 5.06 (b) of the Texas Disciplinary Rules of conduct. Thus, an agreement in which an attorney agrees not to share fees with anyone in the future with respect to lawsuits or claims brought against the opposing party is a limitation on the practice of law and would be in violation of Rule 5.06 (b). It is hard to see how the scenario raised by the question would be seen as distinguishable.

You negotiate a settlement for a client in a contingent fee case. The defendant is concerned about what you have uncovered and about other similar cases against it and wants a provision in the settlement agreement that you and your client will never tell anyone anything about the case, unless required by law. They are willing to pay your client more for a settlement that has this provision. Can you accept?

Yes.

You represent a client in a multiple party situation. The matter is concluded by agreement among all parties concerned. One of the opposing parties wants to hire you in a dispute that arises later over the same matter. Your former client, after full disclosure and thoughtful consideration, has no problem with your representing this other party in addition to her interests as their position with respect to the new dispute is precisely the same. However, one of the other parties objects and says you can’t take on the new client ion addition to the old one. Can you take on the new client?

No. DR 1.06(d) states that “a lawyer who has represented multiple parties in a matter shall not thereafter represent any of such parties in a dispute among the parties arising out of the matter, unless prior consent is obtained from all such parties to the dispute.” (emphasis added).

You are asked by a senior partner to take a T.R.O. over to the courthouse to be signed by the judge in a lawsuit the senior partner has filed. Since it is a T.R.O., the other side has no notice or opportunity to appear and contest anything you say to the judge. You notice on the way to the courthouse that the lawsuit misidentifies the real estate involved. This means the petition will need to be amended to make the T.R.O. appropriate, but you suspect the partner wants the T.R.O. entered as is in order to get the defendant’s attention right now. Must you tell the judge about the partner’s mistake or do as instructed and see that it is promptly corrected later?

You must tell the judge or go back to the office. DR 3.03(a)(3) requires a lawyer in an ex parte proceeding to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision.

You are asked by a partner to write a response brief to be filed in opposition to a motion in a pending case. You read the other side’s motion. You do research. You find some cases that seem to support your position. You also find one case with no writ history from the Waco Court of Appeals that directly contradicts your position. What are your options?

Only one.…Cite and mention the case in your brief and try to distinguish it or otherwise get around it. DR 3.03(a)(4) provides that a lawyer may not knowingly “fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”

You have a client that hires you to help her develop a subdivision. As you get into it, you discover that the subdivision will be on land that you believe should remain a wildlife preserve. There is nothing illegal, fraudulent, unprofessional, or unethical about what your client wants you to do. You just don’t like it, and the client won’t change her mind. Can you withdraw after having first agreed to represent the client?

Yes. Rule 1.15(d) provides that an attorney may withdraw if a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement. Upon termination of representation, of course, the lawyer must take steps to the extent reasonably practicable to protect a clients interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. 

May a law firm bill the client more for the work of a contract lawyer than the firm pays that lawyer?

Only if the contract lawyer is “in” the firm, or if all fee-splitting and referral requirements of Rule 1.04 (f) are met. Opinion 577 (2008) of the Texas Supreme Court Professional Ethics Committee provides that “Firm lawyers,” whether partners, shareholders, associates, or otherwise named, are not covered by the fee-splitting rules contained in 1.04 (f). Hence, there is no restriction on the firm charging more for the attorney’s time than it paid him or her, except for the general rule that no fee charged by any lawyer or firm can be illegal or unconscionable in amount.
However, Under the Texas Disciplinary Rules of Professional Conduct, specifically Rule 1.04, the matter must be analyzed differently when a firm seeks to mark-up the fees of a “non-firm lawyer.” Under those circumstances, all requirements of Rule 1.04 (f) with respect to referral fees and other fee-splitting arrangements must be met. This includes “proportionality of fees to services performed or joint responsibility for the representation, written client consent to the terms of the fee division, and a total fee that is not unconscionable under Rule 1.04(a).  In addition, Rule 7.01(d) will prohibit the law firm from incorporating the non-firm lawyer’s name, work, and time into its own bill unless the law firm does so in a way that identifies the non-firm lawyer as a lawyer who is not in the firm.”
Opinion 577 only gives general guidance as to how to determine whether a contract lawyer in “inside” or “outside” of the firm. It provides that someone who is not a partner, shareholder, or associate, is nonetheless “in” the firm, if they: are reasonably considered to be “in” the law firm.  Such a determination can be based on various objective factors, including but not limited to the receipt of firm communications, inclusion in firm events, work location, length and history of association with the firm, whether the firm and the lawyer identify or hold the lawyer out as being in the firm to clients and to the public, and the lawyer’s access to firm resources including computer data and applications, client files and confidential information.  Examples of other firm lawyers include lawyers referred to as of counsel, senior attorneys, contract lawyers and part-time lawyers (emphasis added).