Ensuring Ethical Compliance in Legal Service Contracts

 
Ethical Considerations and Pitfalls: An Overview
 
The FUNDAMENTALS:
Writing the Legal Services Contract: Rule 1.04 and
Fiduciary Duty Concerns
Conflicts of Interest: Rules 1.06 and 1.09
Client Incapacity Risks: Rule 1.02, Duty of Care and
Fiduciary Duty Considerations.
Client Confidential Information: Rule 1.05
Lawyer Advertising: Rules 7.01-7.07
THE NEW AND NOT SO NEW:
Professional Ethics Committee Opinions: 
Estate
Planning Questions and Answers
 
 
 
 
2
 
Hoover Slovacek v. Walton (2006)
 
THE TEXAS SUPREME COURT:
“THE DUTY IS THE HIGHEST WHEN THE ATTORNEY
CONTRACTS WITH HIS OR HER CLIENT OR
OTHERWISE TAKES A POSITION ADVERSE TO HIS
OR HER CLIENT’S INTERESTS.
QUOTING JUSTICE CARDOZA: 
“[A FIDUCIARY] IS
HELD TO SOMETHING STRICTER THAN THE MORALS
OF THE MARKETPLACE.  NOT HONESTY ALONE, BUT
THE 
PUNCTILIO
 OF AN HONOR THE MOST
SENSTIVE, IS THEN THE STANDARD OF BEHAVIOR.”
 
3
 
Writing the Fee Contract
 
KEY POINTS:
1. 
SCOPE OF REPRESENTATION 
CLEARLY DEFINED
2. 
FEES 
CLEARLY IDENTIFIED 
AND CALCULATION
DESCRIBED
3. 
CLIENTS (AND SOMETIMES NON-CLIENTS)
CLEARLY IDENTIFIED
PARTICIPATING LAW FIRM(S) 
CLEARLY IDENTIFIED
BY NAME
RULE 1.04(F) DISCLOSURES: 
LAW FIRMS,
PERCENTAGES, BASES FOR DIVISION OF FEES,
CLIENT WRITTEN CONSENT IN ADVANCE OF OTHER
LAW FIRMS JOINING
 
 
4
 
Writing the Fee Contract
 
CLARITY
: AVOID THE WHEREAS, HERETOFORES,
AND OTHER CONVOLUTED AND OFTEN
MEANINGLESS LEGALISTIC LANGUAGE—ALSO
CONTRACT TRANSLATION FOR NON-ENGLISH
SPEAKING/READING CLIENT.
THE 
AUDIENCE
 FOR A FEE CONTRACT IS NOT ONLY
THE CLIENT, BUT MAY ALSO INCLUDE JUDGES,
JURIES, AND APPELLATE COURTS.  
WHAT WOULD
THEY THINK?
CONFLICTS DISCLOSURES AND WAIVERS 
UNDER
RULE 1.06?  
(DESCRIBE CONFLICT OR POTENTIAL
CONFLICTS, IMPLICATIONS TO THE CLIENT,
DISADVANTAGES, ADVANTAGES, ETC.).  
COMMENT 7
TO RULE 1.06: DISINTERESTED LAWYER TEST?
 
5
 
Writing the Fee Contract
 
NO GLOBAL CONFLICTS WAIVERS
TEXAS LAW 
APPLIES?
VENUE
 
FOR DISPUTES?  
FORUM 
FOR DISPUTES?
ARBITRATION OR COURT?
INTEGRATION PROVISION
: ANY PRIOR AGREEMENTS
INTEGRATED INTO THE FEE CONTRACT?
SEVERABILITY PROVISION
: TO SAVE THE GOOD SO A BAD
PROVISION DOESN’T PULL DOWN THE WHOLE
CONTRACT?
NO GUARANTEES, PROMISES, OR WARRANTIES
 
ABOUT
OUTCOMES?
 
6
 
Writing the Fee Contract
 
DON’T
 ACQUIRE A 
PROPRIETARY INTEREST 
IN THE
SUBJECT MATTER OF THE REPRESENTATION
DON’T CONTRACT FOR 
LITERARY OR MEDIA RIGHTS
(UNTIL THE REPRESENTATION IS OVER)
NO PROSPECTIVE MALPRACTICE LIMITATION OR
WAIVER 
BY CLIENT 
UNLESS
 CLIENT IS INDEPENDENTLY
REPRESENTED IN MAKING THE LIMITATION OR WAIVER.
CONTRACT SIGNED AND DATED BY CLIENT?
CONTRACT SIGNED AND DATED BY LAW FIRM
?
USUALLY BOTH SIGNATURES REQUIRED, BUT
IMPORTANT TO HAVE A SIGNATURE OF THE PARTY
AGAINST WHOM THE CONTRACT IS BEING ENFORCED IN
A DISPUTE.
 
7
 
Writing the Fee Contract
 
FIRST STEPS:
READ YOUR FEE CONTRACT 
TODAY
 
AND UPDATE.
READ IT 
EVERY TIME 
YOU CONTRACT WITH A NEW
CLIENT
DON’T ASSUME 
THAT A CONTRACT THAT
ALLEGEDLY WORKED FOR ANOTHER LAWYER OR
LAW FIRM IS RIGHT FOR YOU.  
IT MAY CONTAIN
ILLEGAL OR IMPROPER PROVISIONS.
DON’T BECOME COMPLACENT ABOUT FORM
CONTRACTS—SOMETIMES A CUSTOM CONTRACT IS
NEEDED.
 
8
 
Conflicts of Interest
 
SOME BASIC TEXAS RULES
1. 
TEXAS RULE 1.06 (General Conflicts of Interest
Rule)
(b) In other situations and except to the extent permitted
by paragraph (c
), 
a lawyer shall not represent a person if
the representation of that person
:
(1)
 involves a 
substantially related matter 
in which that
person's interests are 
materially and directly adverse 
to
the interests of 
another client of the lawyer or the
lawyer's firm
; or
(2)
 
reasonably appears to be or become 
adversely
limited 
by the lawyer's or law firm's responsibilities 
to
another client or to a third person
 or 
by the lawyer's or
law firm's own interest
s.
 
9
 
Conflicts of Interests and Conflicts Waivers
 
(c) A lawyer may represent a client in the
circumstances described in (b) if:
(1
) the lawyer reasonably believes the
representation of each client will not be materially
affected; and   
   
[SEE COMMENT 7 TO THIS RULE]
(2) 
each affected or potentially affected client
consents 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.
 
10
 
(d) 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.
(e) If a lawyer has accepted representation in violation of
this Rule, or if multiple representation properly accepted
becomes improper under this Rule, 
the lawyer shall
promptly withdraw from one or more representations
to the extent necessary for any remaining
representation not to be in violation of these Rules.
(f) 
If a lawyer would be prohibited by this Rule from
engaging in particular conduct, no other lawyer while a
member or associated with that lawyer's firm may
engage in that conduct
.
 
11
 
Conflicts of Interest: Rule 1.06
 
Conflicts of Interest: Rule 1.09
 
Texas Rule 1.09 (Former Client Conflicts):
(a) Without prior consent, 
a lawyer who 
personally
has formerly represented a client in a matter shall
not thereafter represent another person in a matter
adverse to the former client
:
(1) in which such other person questions the validity
of the lawyer's services or work product for the
former client;
(2) 
if the representation in 
reasonable probability
will involve a violation of Rule 1.05; or
(3
) if it is the 
same or a substantially related 
matter.
 
12
 
Conflicts of Interest
 
Texas Rule 1.09 (continued):
(b) Except to the extent authorized by Rule 1.10, when
lawyers are or have become members of or associated
with a firm
, 
none of them shall knowingly represent a
client if any one of them practicing alone would be
prohibited from doing so by paragraph (a)
.
(c) 
When the association of a lawyer with a firm has
terminated, the lawyers who were then associated with
that lawyer shall not knowingly represent a client if the
lawyer whose association with that firm has terminated
would be prohibited
 
from doing so by paragraph (a)(1) or
if the representation in reasonable probability will involve
a violation of Rule 1.05.
 
13
 
Conflicts of Interest: 
Rule 1.08(a) and (b): 
Business
Transactions with Clients and Testamentary Gifts
 
(a) A lawyer shall not enter into a business transaction with a
client unless:
     
(1) the transaction and terms on which the lawyer acquires
the interest are fair and reasonable to the client and are fully
disclosed in a manner which can be reasonably understood by
the client;
     (2) the client is given a reasonable opportunity to seek the
advice of independent counsel in the transaction; and
     (3) the client consents in writing thereto.
(b) A lawyer shall not prepare an instrument giving the lawyer
or a person related to the lawyer as a parent, child, sibling, or
spouse any substantial gift from a client, including a
testamentary gift, except where the client is related to the
donee.
 
14
 
Texas Rule 1.02 and Client Incapacity
 
Rule 1.02 
concerns the lawyer’s scope of
representation and what are properly the client’s
decisions versus the lawyer’s decisions.
(g) A lawyer shall take reasonable action to secure
the appointment of a guardian or other legal
representative for, or seek other protective orders
with respect to, a client 
whenever the lawyer
reasonably believes that the client lacks legal
competence and that such action should be taken
to protect the client
.
What might trigger this concern?
 
15
 
Texas Rule 1.02(g)—Official Comments
 
12. 
Paragraph (a) assumes that the lawyer is legally
authorized to represent the client. The usual
attorney-client relationship is established and
maintained by consenting adults who possess the
legal capacity to agree to the relationship.
 
Sometimes the relationship can be established
only by a legally effective appointment of the
lawyer to represent a person. Unless the lawyer is
legally authorized to act for a person under a
disability, an attorney-client relationship does not
exist for the purpose of this rule.
 
16
 
Texas Rule 1.02(g)—Official Comments
 
13. 
If a legal representative has already been appointed
for the client, the lawyer should ordinarily look to the
representative for decisions on behalf of the client.
If a legal representative has not been appointed,
paragraph (g) requires a lawyer in some situations to take
protective steps, such as initiating the appointment of a
guardian. The lawyer should see to such appointment or
take other protective steps when it reasonably appears
advisable to do so in order to serve the client's best
interests.
See Rule 1.05 (c)(4), d(1) and (d)(2)(i) in regard to the
lawyer's right to reveal to the court the facts reasonably
necessary to secure the guardianship or other protective
order.
 
17
 
Client Confidential Information
 
Texas Rule 1.05:
(a) 
Confidential information 
includes 
both
 
privileged
information and unprivileged client information
.
Privileged information 
refers to the information of a
client protected by the lawyer-client privilege of Rule 5.03
of the Texas Rules of Evidence or of Rule 5.03 of the
Texas Rules of Criminal Evidence or by the principles of
attorney-client privilege governed by Rule 5.01 of the
Federal Rules of Evidence for United States Courts and
Magistrates.
 
Unprivileged client information 
means 
all information
relating to a client or furnished by the client, other than
privileged information, acquired by the lawyer during
the course of or by reason of the representation of the
client.
 
18
 
Client Confidential Information
 
Texas Rule 1.05:
Several exceptions to confidentiality; however,
some exceptions apply broadly to both privileged
and unprivileged client information and some only
apply to unprivileged client information.
No exception for “public information”—i.e.,
information contained in a public record, pleading,
court document, etc.
There is an exception for “
generally known
” but this
is 
not
 the same as “public information”.  
See Texas
Professional Ethics Opinion 595 (2010).
 
19
 
Rule 1.05: Client Confidential Information
(Rule 1.02--Comment references re: disability)
 
(c) A lawyer may reveal confidential information:
      (4) When the lawyer has reason to believe it is necessary
to do so in order to comply with a court order, a Texas
Disciplinary Rule of Professional Conduct, or other law.
(d) A lawyer also may reveal unprivileged client information.
     (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;
 
20
 
Lawyer Advertising
 
Texas 
Rules 7.01 to 7.07
 deal with lawyer advertising.
Lawyer Advertising is Highly Regulated in Texas
There are 
Content Rules 
and there are 
Filing Rules
.
Make sure that your lawyer advertising is filed (i.e.,
received) by the Advertising Review Department of
the State Bar 
no later than the first day you use,
publish, air, or send that advertising to potential
clients.
 
21
 
Lawyer Advertising
 
LAW FIRM WEBSITES 
ARE LAWYER ADVERTISING
AND MUST BE FILED WITH THE ADVERTISING
REVIEW DEPARTMENT.
SUBSTANTIVE CHANGES TO A LAW FIRM WEBSITE
REQUIRE A NEW SUBMISSION TO THE ADVERTISING
REVIEW DEPARTMENT.
SOCIAL MEDIA—FACEBOOK, LINKED-IN,
TWITTER—ARE LAWYER ADVERTISING IF THEY
SOLICIT POTENTIAL CLIENTS OR PROMOTE YOUR
LEGAL SERVICES.
 
22
 
Texas Professional Ethics Opinion 662 (2016)
 
IF YOU RECEIVE A BAD ONLINE REVIEW FROM A CLIENT
OR FORMER CLIENT, WHAT DO YOU DO?
RULE 1.05: CLIENT CONFIDENTIAL INFORMATION
IN RESPONDING, DO 
NOT
 DISCLOSE CLIENT
CONFIDENTIAL INFORMATION—WHICH LIMITS YOUR
ABILITY TO RESPOND SPECIFICALLY TO ALLEGATIONS—
EVEN FALSE ALLEGATIONS.
SAMPLE RESPONSE: “
A lawyer’s duty to keep client
confidences has few exceptions and in an abundance of
caution I do not feel at liberty to respond in a point by
point fashion in this forum.  Suffice it to say that I do not
believe that the post presents a fair and accurate picture
of the events
.
 
23
 
Texas Professional Ethics Opinion 641 (2014)
 
QUESTION:
 Do the Texas Disciplinary Rules permit a
lawyer to accept client referrals from a financial
planning services company that regularly engages the
lawyer to provide legal services to the company?
The company offers financial planning services,
including selling securities and life insurance
products, to its customers.
The lawyer provides legal services to the company
BUT does not 
provide legal services to the company’s
customers as part of the lawyer’s legal services to the
company.
RULES?   1.06(b), 2.01, 5.04(c), and 7.03(b) and (c)
CONCLUSION?
 
24
 
TEXAS PROFESSIONAL ETHICS OPINION 678 (2018)
 
QUESTION
: 
UNDER THE TEXAS DISCIPLINARY RULES,
MAY A TEXAS LAWYER AGREE TO SERVE
CONCURRENTLY AS THE EXECUTOR OF AN ESTATE
AND AS LEGAL COUNSEL FOR THE EXECUTOR?
IF NOT, MAY ANOTHER LAWYER IN HIS LAW FIRM
SERVE AS LEGAL COUNSEL FOR THE EXECUTOR?
FACTS:
 
LAWYER’S PARENT HAS DIED.  THE WILL
NAMES LAWYER AS EXECUTOR.  LAWYER AND
SIBLINGS ARE BENEFICIARIES.  LAWYER ALSO
INTENDS TO ACT AS LAWYER FOR THE EXECUTOR AS
WELL AS ACTING AS EXECUTOR.  IF THE LAWYER
CANNOT ACT AS BOTH, LAWYER INTENDS TO HAVE
ANOTHER LAWYER IN THE FIRM ACT AS COUNSEL TO
THE EXECUTOR.
RULES? 1.06(b)(c) and (f).  Maybe 3.08?
 
25
 
The End
 
 
26
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This overview delves into the ethical considerations and pitfalls in legal services contracts, emphasizing fiduciary duties, conflicts of interest, client confidentiality, and lawyer advertising. Key points include clarity in fee contract writing, disclosures, conflict waivers, and the importance of upholding ethical standards in client representation.


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  1. Ethical Considerations and Pitfalls: An Overview The FUNDAMENTALS: Writing the Legal Services Contract: Rule 1.04 and Fiduciary Duty Concerns Conflicts of Interest: Rules 1.06 and 1.09 Client Incapacity Risks: Rule 1.02, Duty of Care and Fiduciary Duty Considerations. Client Confidential Information: Rule 1.05 Lawyer Advertising: Rules 7.01-7.07 THE NEW AND NOT SO NEW: Professional Ethics Committee Opinions: Estate Planning Questions and Answers 2

  2. Hoover Slovacek v. Walton (2006) THE TEXAS SUPREME COURT: THE DUTY IS THE HIGHEST WHEN THE ATTORNEY CONTRACTS WITH HIS OR HER CLIENT OR OTHERWISE TAKES A POSITION ADVERSE TO HIS OR HER CLIENT S INTERESTS. QUOTING JUSTICE CARDOZA: [A FIDUCIARY] IS HELD TO SOMETHING STRICTER THAN THE MORALS OF THE MARKETPLACE. NOT HONESTY ALONE, BUT THE PUNCTILIO OF AN HONOR THE MOST SENSTIVE, IS THEN THE STANDARD OF BEHAVIOR. 3

  3. Writing the Fee Contract KEY POINTS: 1. SCOPE OF REPRESENTATION CLEARLY DEFINED 2. FEES CLEARLY IDENTIFIED AND CALCULATION DESCRIBED 3. CLIENTS (AND SOMETIMES NON-CLIENTS) CLEARLY IDENTIFIED PARTICIPATING LAW FIRM(S) CLEARLY IDENTIFIED BY NAME RULE 1.04(F) DISCLOSURES: LAW FIRMS, PERCENTAGES, BASES FOR DIVISION OF FEES, CLIENT WRITTEN CONSENT IN ADVANCE OF OTHER LAW FIRMS JOINING 4

  4. Writing the Fee Contract CLARITY: AVOID THE WHEREAS, HERETOFORES, AND OTHER CONVOLUTED MEANINGLESS LEGALISTIC CONTRACT TRANSLATION SPEAKING/READING CLIENT. AND OFTEN LANGUAGE ALSO FOR NON-ENGLISH THE AUDIENCE FOR A FEE CONTRACT IS NOT ONLY THE CLIENT, BUT MAY ALSO INCLUDE JUDGES, JURIES, AND APPELLATE COURTS. WHAT WOULD THEY THINK? CONFLICTS DISCLOSURES AND WAIVERS UNDER RULE 1.06? (DESCRIBE CONFLICT OR POTENTIAL CONFLICTS, IMPLICATIONS DISADVANTAGES, ADVANTAGES, ETC.). COMMENT 7 TO RULE 1.06: DISINTERESTED LAWYER TEST? TO THE CLIENT, 5

  5. Writing the Fee Contract NO GLOBAL CONFLICTS WAIVERS TEXAS LAW APPLIES? VENUE FOR DISPUTES? FORUM FOR DISPUTES? ARBITRATION OR COURT? INTEGRATION PROVISION: ANY PRIOR AGREEMENTS INTEGRATED INTO THE FEE CONTRACT? SEVERABILITY PROVISION: TO SAVE THE GOOD SO A BAD PROVISION DOESN T PULL DOWN THE WHOLE CONTRACT? NO GUARANTEES, PROMISES, OR WARRANTIES ABOUT OUTCOMES? 6

  6. Writing the Fee Contract DON T ACQUIRE A PROPRIETARY INTEREST IN THE SUBJECT MATTER OF THE REPRESENTATION DON T CONTRACT FOR LITERARY OR MEDIA RIGHTS (UNTIL THE REPRESENTATION IS OVER) NO PROSPECTIVE MALPRACTICE LIMITATION OR WAIVER BY CLIENT UNLESS CLIENT IS INDEPENDENTLY REPRESENTED IN MAKING THE LIMITATION OR WAIVER. CONTRACT SIGNED AND DATED BY CLIENT? CONTRACT SIGNED AND DATED BY LAW FIRM? USUALLY IMPORTANT TO HAVE A SIGNATURE OF THE PARTY AGAINST WHOM THE CONTRACT IS BEING ENFORCED IN A DISPUTE. BOTH SIGNATURES REQUIRED, BUT 7

  7. Writing the Fee Contract FIRST STEPS: READ YOUR FEE CONTRACT TODAYAND UPDATE. READ IT EVERY TIME YOU CONTRACT WITH A NEW CLIENT DON T ALLEGEDLY WORKED FOR ANOTHER LAWYER OR LAW FIRM IS RIGHT FOR YOU. IT MAY CONTAIN ILLEGAL OR IMPROPER PROVISIONS. ASSUME THAT A CONTRACT THAT DON T BECOME COMPLACENT ABOUT FORM CONTRACTS SOMETIMES A CUSTOM CONTRACT IS NEEDED. 8

  8. Conflicts of Interest SOME BASIC TEXAS RULES 1. TEXAS RULE 1.06 (General Conflicts of Interest Rule) (b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person: (1) involves a substantially related matter in which that person's interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer's firm; or (2) reasonably appears to be or become adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's or law firm's own interests. 9

  9. Conflicts of Interests and Conflicts Waivers (c) A lawyer may represent a client in the circumstances described in (b) if: (1) representation of each client will not be materially affected; and [SEE COMMENT 7 TO THIS RULE] the lawyer reasonably believes the (2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences representation and the advantages involved, if any. of the common 10

  10. Conflicts of Interest: Rule 1.06 (d) 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. (e) If a lawyer has accepted representation in violation of this Rule, or if multiple representation properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from one or more representations to the extent necessary for any remaining representation not to be in violation of these Rules. (f) If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer while a member or associated with that lawyer's firm may engage in that conduct. 11

  11. Conflicts of Interest: Rule 1.09 Texas Rule 1.09 (Former Client Conflicts): (a) Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client: (1) in which such other person questions the validity of the lawyer's services or work product for the former client; (2) if the representation in reasonable probability will involve a violation of Rule 1.05; or (3) if it is the same or a substantially related matter. 12

  12. Conflicts of Interest Texas Rule 1.09 (continued): (b) Except to the extent authorized by Rule 1.10, when lawyers are or have become members of or associated with a firm, none of them shall knowingly represent a client if any one of them practicing alone would be prohibited from doing so by paragraph (a). (c) When the association of a lawyer with a firm has terminated, the lawyers who were then associated with that lawyer shall not knowingly represent a client if the lawyer whose association with that firm has terminated would be prohibited from doing so by paragraph (a)(1) or if the representation in reasonable probability will involve a violation of Rule 1.05. 13

  13. Conflicts of Interest: Rule 1.08(a) and (b): Business Transactions with Clients and Testamentary Gifts (a) A lawyer shall not enter into a business transaction with a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed in a manner which can be reasonably understood by the client; (2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and (3) the client consents in writing thereto. (b) A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as a parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee. 14

  14. Texas Rule 1.02 and Client Incapacity Rule 1.02 concerns the lawyer s scope of representation and what are properly the client s decisions versus the lawyer s decisions. (g) A lawyer shall take reasonable action to secure the appointment of a guardian or other legal representative for, or seek other protective orders with respect to, a client whenever the lawyer reasonably believes that the client lacks legal competence and that such action should be taken to protect the client. What might trigger this concern? 15

  15. Texas Rule 1.02(g)Official Comments 12. Paragraph (a) assumes that the lawyer is legally authorized to represent the client. The usual attorney-client relationship is established and maintained by consenting adults who possess the legal capacity to agree to the relationship. Sometimes the relationship can be established only by a legally effective appointment of the lawyer to represent a person. Unless the lawyer is legally authorized to act for a person under a disability, an attorney-client relationship does not exist for the purpose of this rule. 16

  16. Texas Rule 1.02(g)Official Comments 13. If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. If a legal representative has not been appointed, paragraph (g) requires a lawyer in some situations to take protective steps, such as initiating the appointment of a guardian. The lawyer should see to such appointment or take other protective steps when it reasonably appears advisable to do so in order to serve the client's best interests. See Rule 1.05 (c)(4), d(1) and (d)(2)(i) in regard to the lawyer's right to reveal to the court the facts reasonably necessary to secure the guardianship or other protective order. 17

  17. Client Confidential Information Texas Rule 1.05: (a) Confidential information includes bothprivileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client. 18

  18. Client Confidential Information Texas Rule 1.05: Several exceptions to confidentiality; however, some exceptions apply broadly to both privileged and unprivileged client information and some only apply to unprivileged client information. No exception for public information i.e., information contained in a public record, pleading, court document, etc. There is an exception for generally known but this is notthe same as public information . See Texas Professional Ethics Opinion 595 (2010). 19

  19. Rule 1.05: Client Confidential Information (Rule 1.02--Comment references re: disability) (c) A lawyer may reveal confidential information: (4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law. (d) A lawyer also may reveal unprivileged client information. (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; 20

  20. Lawyer Advertising Texas Rules 7.01 to 7.07 deal with lawyer advertising. Lawyer Advertising is Highly Regulated in Texas There are Content Rules and there are Filing Rules. Make sure that your lawyer advertising is filed (i.e., received) by the Advertising Review Department of the State Bar no later than the first day you use, publish, air, or send that advertising to potential clients. 21

  21. Lawyer Advertising LAW FIRM WEBSITES ARE LAWYER ADVERTISING AND MUST BE FILED WITH THE ADVERTISING REVIEW DEPARTMENT. SUBSTANTIVE CHANGES TO A LAW FIRM WEBSITE REQUIRE A NEW SUBMISSION TO THE ADVERTISING REVIEW DEPARTMENT. SOCIAL TWITTER ARE LAWYER ADVERTISING IF THEY SOLICIT POTENTIAL CLIENTS OR PROMOTE YOUR LEGAL SERVICES. MEDIA FACEBOOK, LINKED-IN, 22

  22. Texas Professional Ethics Opinion 662 (2016) IF YOU RECEIVE A BAD ONLINE REVIEW FROM A CLIENT OR FORMER CLIENT, WHAT DO YOU DO? RULE 1.05: CLIENT CONFIDENTIAL INFORMATION IN CONFIDENTIAL INFORMATION WHICH LIMITS YOUR ABILITY TO RESPOND SPECIFICALLY TO ALLEGATIONS EVEN FALSE ALLEGATIONS. RESPONDING, DO NOT DISCLOSE CLIENT SAMPLE RESPONSE: A lawyer s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events. 23

  23. Texas Professional Ethics Opinion 641 (2014) QUESTION: Do the Texas Disciplinary Rules permit a lawyer to accept client referrals from a financial planning services company that regularly engages the lawyer to provide legal services to the company? The company offers financial planning services, including selling securities and life insurance products, to its customers. The lawyer provides legal services to the company BUT does not provide legal services to the company s customers as part of the lawyer s legal services to the company. RULES? 1.06(b), 2.01, 5.04(c), and 7.03(b) and (c) CONCLUSION? 24

  24. TEXAS PROFESSIONAL ETHICS OPINION 678 (2018) QUESTION: UNDER THE TEXAS DISCIPLINARY RULES, MAY A TEXAS LAWYER CONCURRENTLY AS THE EXECUTOR OF AN ESTATE AND AS LEGAL COUNSEL FOR THE EXECUTOR? IF NOT, MAY ANOTHER LAWYER IN HIS LAW FIRM SERVE AS LEGAL COUNSEL FOR THE EXECUTOR? FACTS: LAWYER S PARENT HAS DIED. THE WILL NAMES LAWYER AS EXECUTOR. LAWYER AND SIBLINGS ARE BENEFICIARIES. LAWYER ALSO INTENDS TO ACT AS LAWYER FOR THE EXECUTOR AS WELL AS ACTING AS EXECUTOR. IF THE LAWYER CANNOT ACT AS BOTH, LAWYER INTENDS TO HAVE ANOTHER LAWYER IN THE FIRM ACT AS COUNSEL TO THE EXECUTOR. RULES? 1.06(b)(c) and (f). Maybe 3.08? AGREE TO SERVE 25

  25. The End 26

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