Navigating the Ethics Rules: What Matters in Answering Questions about Texas Legal Ethics and Why

1.1 Ultimate Source of the Rules

The Supreme Court of Texas promulgates the Rules by Court order.

1.2 New Rule Process

Most often, a committee appointed by either the State Bar of Texas or the Supreme Court originates drafts of new rules or revisions to existing rules. In the most recent rule revision attempt in 2012, a State Bar committee and a Supreme Court-appointed committee each developed proposals for a comprehensive overhaul of the existing rules over a period of several years. Those separate proposals were then harmonized into one set presented to Texas lawyers in a referendum. In 1994-1995, however, the State Bar took the lead in successfully developing a major rewrite of the lawyer advertising rules.

Once a set of proposed new rules or revisions to existing rules is completed, the Supreme Court orders a referendum of Texas lawyers on those proposals. In a referendum conducted by the State Bar, a majority of lawyers must vote in favor of the proposed rules. Alternatively, in rare instances, the Texas Supreme Court has promulgated changes to the disciplinary rules without a referendum—particularly, where the federal courts have struck down a disciplinary rule in Texas or a similar rule in another state and there is no basis for a lawyer referendum to correct a rule.

1.3 How Many Rules?

The Texas Disciplinary Rules of Professional Conduct are composed of 52 separate rules that are divided into nine categories:

• Client-Lawyer Relationship
• Counselor
• Advocate
• Non-Client Relationships
• Law Firms and Associations
• Public Service
• Information About Legal Services
• Maintaining the Integrity of the Profession
• Severability of Rules

1.4 Preambles

There are three Preambles to the Texas Disciplinary Rules: “A Lawyer’s Responsibilities,” “Scope,” and “Terminology.” The first of these is primarily about aspirational issues for lawyers; the second defines the scope of the Rules and their context; and the third “Terminology” provides definitions of certain terms used within the Rules. When reading a disciplinary rule, check the “Terminology” preamble at the front of the rules to see if any of the terms used in the rule are given a specific meaning in the definitions.

The “Preamble: Scope” introduction to the Texas Disciplinary Rules attempts to limit the use of the Rules to attorney discipline in Section 15 of the Preamble:

15. These rules do not undertake to define standards of civil liability of lawyers for professional conduct. Violation of a rule does not give rise to a private cause of action nor does it create any presumption that a legal duty to a client has been breached. Likewise, these rules are not designed to be standards for procedural decisions. Furthermore, the purpose of these rules can be abused when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.

Despite what appears above to be a definitive statement, the reality is that Texas courts, including the Texas Supreme Court, have considered and applied the Texas rules well beyond the disciplinary realm. For example, many court opinions consider Rules 1.09 and 3.08 in deciding whether an attorney is disqualified from a client representation. The Rules have occasionally been referenced, directly and indirectly, for other civil purposes as well. This is not unreasonable since the ultimate originator of our disciplinary rules is the Texas Supreme Court and our disciplinary rules represent a minimum standard of conduct for lawyers (if a lawyer’s conduct is below the minimum required, then something is amiss).