Ethics Question of the Month

Ethics Question of the Month - September 2020

Everybody’s Talkin’

Attorney Will represents the family of Daniel, who perished in a car crash. The driver of the other car, Elizabeth, was driving home from a Vitatek company Christmas party. Elizabeth fled the scene and hid at a friend’s house for three days before turning herself in to the police. She was booked for leaving the scene of an accident and administered drug and alcohol tests, which showed trace amounts of cocaine and alcohol. 

Will files suit on behalf of Daniel’s family against: (1) Elizabeth for negligence in causing the collision, and (2)  Vitatek, alleging that Elizabeth was impaired when she left the Christmas party and her impairment caused the collision. Defense counsel Marsha files an answer and a motion for summary judgment, alleging there is no evidence that Elizabeth was impaired, no evidence she was knowingly over-served at the party, and that Vitatek owed no duty to Daniel. Will is unable to persuade anyone at the party to testify specifically about Elizabeth’s condition at the Christmas party; he only elicits general comments that there was widespread drinking and there appeared to be surreptitious drug use. The trial court grants the motion for summary judgment on behalf of Vitatek. Will appeals to the court of appeals.

The court of appeals reverses the summary judgment, holding that the evidence at least raises a fact issue about Vitatek’s conduct regarding the party being cause of the collision. Marsha files a petition for review in the Supreme Court of Texas. 

After the petition is filed, Will calls a press conference, and sharply criticizes Vitatek for its “legal shenanigans” calculated to delay and avoid ever facing a jury. To highlight Vitatek’s misconduct, Will says he has received reliable -- but thus far anonymous -- tips about the Christmas party revealing that: (1) Vitatek encouraged heavy drinking but made no arrangements for alternative transportation nor did it warn partygoers about drinking and driving; (2) Vitatek’s CEO was offering cocaine to female partygoers in exchange for sex, and Elizabeth accepted the cocaine, but declined the sex, leading to a confrontation that ended in her  leaving the party in an emotionally fraught condition; (3) after leaving the scene of the accident, Elizabeth called the CEO of Vitatek, who picked her up and hid her at his home until enough time had passed for her test results to be inconclusive; (4) despite this horrific conduct, Vitatek has only offered an “insultingly paltry” sum of money to compensate Daniel’s family.

In response, Marsha calls a press conference of her own and denies everything Will said about the Vitatek party and its aftermath, pointing to the utter lack of proof.  Nonetheless, she says that, out of sympathy for Daniel’s family and in the spirit of compromise, Vitatek offered the policy limits of its first layer of insurance, or $1,000,000, which Will turned down as personally insulting to a lawyer of his stature.

Which is the most accurate?

A.    Will’s and Marsha’s statements are both unethical.

B.    Will’s statement was unethical, but Marsha’s was permissible.

C.    Will’s statement was permissible, but Marsha’s was unethical.

D.    Both statements are permitted under the Rules.

View the Answer.

Posted: 8/27/2020 7:11:07 PM by Editor | with 0 comments

Ethics Question of the Month - July 2020

Let’s Make a Deal

Attorneys Jerry and Janine are attempting to settle a dispute between their respective clients.  Jerry’s client, ABC Custom Parts, supplies electronic components for goods produced by Janine’s client, XYZ Manufacturing.  The dispute involves a large shipment of parts sold to XYZ by ABC that were defective, preventing XYZ from filling some orders.    

Janine has approached Jerry to work out a solution because, if they go to court, the litigation costs and business disruptions could be substantial for both parties. She suggests a deal: (1) ABC ramps up production to quickly remedy the backlog issue, and (2) ABC provides a discount on several future shipments to cover XYZ’s damages.     

Jerry suspects that he has some negotiating leverage because XYZ will experience more significant delays if it has to locate a new supplier and wait for them reconfigure their facility.  He also knows that XYZ has a reputation for avoiding litigation and believes that they are especially eager to avoid it here.  He wants to use his perceived advantage to force Janine to agree to a quick settlement on favorable terms to his client.  

During the course of his settlement discussions with Janine, he makes the following representations, none of which are accurate: 

  1. Jerry’s client cannot accept any discount over $10,000; his client specifically authorized him to offer a discount up to $17,500. 
  2. An employee of ABC, Carl, will testify that the defect in ABC’s shipment was due to a mistake made by an XYZ employee who provided the wrong specifications; Jerry knows this is not true.
  3. Carl is an excellent witness; Jerry knows from experience that Carl is a terrible witness.  
  4. Our clients’ dispute needs to get settled quickly because ABC is now negotiating with another potential customer and, if they reach a deal, ABC will not have the capacity to do any more work for XYZ; Jerry knows ABC has the capacity to accommodate the new customer and XYZ. 
  5. His reading of the applicable precedents suggests that XYZ’s damages are far less than Janine says they are; Jerry knows Janine’s assessment of damages is probably accurate.    

Under the Texas Disciplinary Rules of Professional Conduct, which is most accurate?    

A.    All of Jerry’s comments are improper because the rules state that a lawyer shall not “make a false statement of material fact or law to a third person” or “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”  
B.    All of Jerry’s comments are proper because the rules permit “puffing” by an attorney when negotiating with opposing counsel. 
C.    2 is improper, but the rest are not.  
D.    2 and 4 are improper, but the rest are not. 
E.    2, 4, and 5 are improper, but the rest are not. 
F.    1 is proper, but the rest are improper.  

View the Answer.

Posted: 6/29/2020 11:18:19 AM by Editor | with 0 comments

Ethics Question of the Month - June 2020

Yelp! I Need Somebody!

Paul is a plaintiff’s personal injury lawyer in solo practice who wants to jump-start his practice. He is aware that many clients resort to the internet when choosing a lawyer to check their ratings by clients. His office has a Yelp listing, but no reviews. His website has a feature for client reviews, but none are posted.

Paul sends an e-mail blast to all his current and former clients and generates a Facebook post soliciting help in elevating his online presence. He encourages clients to post glowing reviews of his practice on as many platforms as they can.

This mass solicitation pays off, as favorable reviews of Paul’s practice begin appearing online. Paul monitors the reviews, and notices that one comment, from an early client, Sarah, appears in identical language on Yelp and on his website client reviews. It says, “Paul is a rock star! He did a great job on my small case, but I know that he has obtained million-dollar judgments for many clients.” 

This gives Paul pause because he has obtained only one judgment of over a million dollars. He had one other jury verdict over a million dollars, but the judgment was reduced to under one million dollars because of a comparative causation finding attributing 20% responsibility to the plaintiff. He also has had several settlements in the high six figures. So the statement is only slightly inaccurate, and Paul no longer knows how to reach Sarah to ask her to correct it

Consider the following possibilities:  

  1. Paul’s active solicitation of favorable reviews was unethical.
  2. Paul is required to correct both comments, because he knows they are inaccurate and convey the wrong impression to potential clients
  3. Paul is required to correct the review on his website, but not the Yelp comments.
  4. Paul is required to correct the comment on Yelp, but not the review on his website.
  5. Paul is not required to correct the inaccurate comments because they are statements by a client and not by him. 

According to a recent ethics opinion from the Committee on Professional Ethics, which of the above statements are most accurate?

A.  2 only
B.  3 only
C.  1 and 2
D.  1 and 3
E.  1 and 4
F.  1 and 5

View the Answer.

Posted: 5/27/2020 12:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - May 2020

Hide? Or Seek?

Attorney Gertrude is a well-respected and successful appellate attorney with a thriving practice.  She has been engaged to appeal a civil district court judgment to a Texas Court of Appeals. The appeal turns on whether a particular statute applies to her client.  Her opposing counsel is primarily a trial lawyer, and Gertrude knows that he rarely handles appeals and is not particularly adept at legal research.  
Gertrude is aware of her duty to make the court aware of authority that is contrary to the position that she is arguing, even if her opponent does not disclose that authority.  After thorough research, she finds the following cases where the court specifically rejected her position: 
1.    An opinion from the Supreme Court of another state from six months ago interpreting an almost identical statute in that state
2.    A unpublished opinion from 2002 issued by another intermediate court of appeals in Texas 
3.    A published opinion from another intermediate court of appeals in Texas from 1995 
4.    Language from a footnote in a recent Texas Supreme Court opinion that clearly constitutes obiter dicta 
As expected, opposing counsel did not mention any of these cases in his brief.  Under the Texas Disciplinary Rules of Professional Conduct, which of these cases is Gertrude required to disclose to the Court in her reply brief?  
A.    Only 3
B.    Only 2 and 3
C.    Only 2.3, and 4
D.    All of them

View the Answer.

Posted: 4/28/2020 12:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - April 2020

You’ve Got a Friend in Me

Lawyer Eric has a general practice in a small Texas town, mostly handling small matters that generate a modest income.  He is approached one day by a potential client with a serious personal injury claim, and he agrees to take the case on a contingency fee basis because of the potential for a large verdict.  For two years, Eric devotes substantial time and resources to getting the case ready for trial, to the detriment of the rest of his practice. His efforts pay off when he secures a favorable jury verdict and a judgment well into the eight-figure range.

    The solvent and well-insured defendant appeals the judgment to a large metropolitan court of appeals with multiple justices who sit in three-justice panels. Eric is not familiar with the court of appeals because few of his cases are appealed and many of the justices joined the court after his last appeal more than a decade ago. 

After the briefing is completed, the court grants oral argument.  The notice of oral argument reveals, for the first time, the names of the three justices on the panel that will decide the case. Eric reviews the justices’ online bios and realizes that one of the justices was a law school classmate of his with whom he has not had contact in over 30 years.  He did not recognize her previously because she got married and changed her name sometime after law school.  She also started using her full first name of “Elizabeth” instead of “Betsy,” as she was known in law school. It was only when he saw her picture and read her bio that he made the connection.  He recalls that she was near the top of their class and that she let him copy her outlines on a couple of occasions when he had missed a few classes they had together.   

    Because Eric fondly remembers how kind she was to him in law school , and he is confident that she is probably an excellent jurist, he decides to make a $4,000 contribution to her re-election campaign before the primary election, which is about a month away.

    Which is most accurate?

A.    The contribution is unethical because Eric has a case currently pending before Justice Elizabeth 
B.    The contribution is unethical because of the timing on the donation, just days before oral argument
C.    The contribution is unethical because $4,000 exceeds the amount that individuals are permitted to make to judicial campaigns  
D.    The contribution is permissible under the ethical rules in Texas

View the Answer.

Posted: 3/27/2020 12:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - March 2020

To File or Not to File? That is the Question

Attorney Deidre is opening her own boutique law firm that focuses on corporate and transactional work throughout Texas.  She is working with an outside expert to create a marketing campaign to advertise the firm’s opening and to highlight the nature of her practice.  The elements of this marketing effort include: 

1.    A professionally-designed firm website with web pages covering an overview of the firm and its practice areas, Deirdre’s biography, her blog on corporate law, and descriptions of a select number of legal matters that Deirdre has previously handled on behalf of her clients.  These matters include several large corporate mergers, several general corporate matters, and a few real estate matters. 
2.    A one-page “tombstone” ad announcing the opening of the new firm to be mailed to specific attorneys and potential clients identified by the marketing expert.  The ad includes only the firm’s contact information, the attorneys in the firm, and the firm’s practice areas.  
3.    An advertisement in the Texas Bar Journal that includes the same information as the tombstone ad plus the description of past legal matters from the website. 
4.    Advertisements in the Dallas Business Journal, the Houston Business Journal, the San Antonio Business Journal, and the Austin Business Journal that are identical to the advertisement in the Texas Bar Journal.     

Deidre is aware that she is required to submit certain marketing materials to the State Bar of Texas Advertising Review Committee for review and approval. Under the Texas Disciplinary Rules of Professional Conduct, which of Deirdre’s marketing materials must be submitted for approval to the State Bar? 

A.    All of them  
B.    Only 1, 3, and 4 must be submitted  
C.    Only 3 and 4 must be submitted
D.    Only 1 and 4 must be submitted  
E.    None of them are required to be submitted

View the Answer.

Posted: 2/27/2020 7:13:12 AM by Editor | with 0 comments

Ethics Question of the Month - February 2020

I’ve Got a Secret

Bob and Ray are solo practitioners who have known each other for many years and have litigated against each other numerous times.  They have a friendly personal and professional relationship, and both have high regard for the other’s legal skills.  In a case they are currently litigating against one another, Bob has become increasingly concerned about Ray and his ability to practice law.  Ray has uncharacteristically missed deadlines, failed to take basic steps to protect his client’s interests in the proceeding, and made some bizarre and illogical legal arguments.  

Additionally, Bob believes he has smelled alcohol on Ray’s breath on multiple occasions.  He recently saw Ray at a local restaurant drinking several glasses of wine at lunch before he encountered Ray at a docket call that afternoon.  Bob is alarmed by what he is witnessing and is convinced that Ray is sufficiently impaired by alcohol – and perhaps mental health issues as well – to the point that he is unable to competently represent clients in his current condition.  Bob considers whether he should report Ray to either the Chief Disciplinary Counsel’s office (CDC) or the Texas Lawyer’s Assistance Program (TLAP), or both.    

Which of these is most accurate? 

A.    Bob is required to report the ethics violation to CDC, but contacting TLAP regarding Ray’s apparent alcohol problems is discretionary. 
B.    Bob must notify both CDC and TLAP of Ray’s behavior.
C.    Bob is not required to report Ray’s behavior because he does not know for certain whether Bob has an alcohol problem. If he is right, and Ray acknowledges a problem and substitutes more competent counsel, that could disadvantage Bob’s client in the current litigation. If he is mistaken, his actions could be perceived as unjustly attacking his opposing counsel and former friend with scurrilous and inaccurate accusations.
D.    Bob must report Ray’s behavior, but he can choose whether to report it to either CDC or TLAP. 

View the Answer.

Posted: 1/28/2020 12:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - January 2020

Lawyer Andrew and Lawyer Beatrice are involved in contentious litigation on behalf of their clients.  During a heated argument in court over a pretrial motion, Andrew says “Well, judge, you know how emotional women lawyers get sometimes.”  Beatrice decides to let this comment go, not wanting to create a distraction or run the risk of annoying the judge while she is trying to be persuasive on what she considers to be an important matter for her client.  Over the next few minutes, things deteriorate and Andrew again disparages Beatrice, saying things like “Your Honor, I think my opponent’s behavior in this case demonstrates conclusively why women attorneys are not cut out to be litigators.”   

Finally, Beatrice has had enough and asks the judge to put a stop to Andrew’s comments regarding her and her gender.  The judge says “well, let’s see if we can keep this on topic” and then asks a specific question about the merits.  The judge does not address Beatrice’s complaints during the rest of the hearing. 

Which of the following is most accurate? 
A.    Both Andrew and the judge violated their ethical obligations under the applicable rules
B.    Lawyer Andrew violated the Disciplinary Rules of Professional Conduct, but the judge did not violate the Code of Judicial Conduct. 
C.    The judge violated the Code of Judicial Conduct, but Andrew did not violate the Disciplinary Rules of Professional Conduct. 
D.    Neither violated any enforceable ethical rules because the behavior in question, at worst, violated the Texas Lawyer’s Creed, which is, by its terms, merely “aspirational.”     

View the Answer.

Posted: 12/27/2019 12:00:00 PM by Editor | with 0 comments

Ethics Question of the Month - December 2019

Lawyer A, Lawyer B, and Lawyer C are all members of a closed group on a social media site open only to Texas lawyers.  Judges are not permitted to join.  The site allows attorneys to connect with one another, to privately seek guidance and advice from other attorneys, and to exchange ideas and information. 

On a recent day, these three lawyers each posted a message to the group:

Lawyer A: “I am a family law attorney and I represent a father in a divorce matter.  My client struggled with alcohol and drug addiction for many years, but successfully completed treatment about a year ago.  I’ve represented in court filings that he’s clean and sober and is no risk to the children. I learned today, however, that he has suffered a relapse.  Do I need to disclose this to the court or opposing counsel?  Can I continue to claim that he is sober?  The case is in Dallas County, if that makes a difference.”

Lawyer B: “I have a niche practice in a highly-specialized area of the law, and I’ve just been retained by a major airline based near my office.  I’ve never dealt with a large legal department like this before.  Any advice from someone who has experience representing airline clients and dealing with their in-house lawyers?”

Lawyer C: “I represent a local car dealership in their efforts to relocate and expand the business.  Yesterday, my client’s owner was privately approached by the owner of the property next door to see if she was interested in purchasing it.  The only catch is the seller wants to close quickly or he will be forced to put it on the open market.  My client is eager to purchase.  Can anyone give me some guidance on drafting the purchase documents to protect my client against any environmental problems with the property?

Assuming that none of the lawyers’ clients have authorized or approved of these posts, do any of them violate the ethics rules? 

  1. All of them do, because all three attorneys reveal details protected by the attorney/client privilege or attorney confidentiality.  
  2. Lawyer A does because the details he discloses are highly damaging to his client, but   Lawyers B and C do not.
  3. Lawyer B does not because she does not disclose any details about the nature of the representation, but Lawyers A and C do. 
  4.  Lawyer B does; Lawyer A does not; we need more information about Lawyer C to determine whether he violated the rules. 
  5. None of them do, because none discloses their clients’ identities. 

View the Answer.

Posted: 11/27/2019 12:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - November 2019

Lawyer A represents Client Z in a difficult, contentious divorce case.  When the case settles, Lawyer A closes the file.  Lawyer A later discovers that Client Z has posted the following on a review website:

“Lawyer A is awful and I cannot recommend her. She told me my ex would not get visitation rights but my terrible ex (who everyone knows should not be around children) still gets the kids every other weekend. She forced me to settle my case even though she previously told me we would win at trial.  She did so because she knew I was running out of money. Lawyer A doesn’t care about her clients or their children; she just wants to make money off the misery of others.”  

Lawyer A considers posting one of the following responses: 
1.     “I am sorry that you are unhappy with the outcome of your case, but I am more than willing to discuss any issues you have with my representation privately.”     
2.    “Because our ethics rules prevent me from revealing any client confidences publicly, I am not comfortable discussing these matters in this forum.  But for the record, I do not believe that your post presents a fair and accurate picture of the events you describe.”  
3.    “I never said that your ex would not get visitation rights, or that we would win at trial.  Under the circumstances, I got you the best possible outcome you could have expected.   You told me you chose to settle because you were worried about the cost of going to trial. You are now dealing with the consequences of your own choice, not any poor performance by me ”   
4.     “Everything you said here is false.  You were uncooperative throughout and changed your story and your mind frequently.  You complained about my bills constantly, and even though I got a great result for you, you attack me online hoping that you won’t have to pay me the money you still owe me.  Well, it won’t work.”    

Which of these is most accurate?   
A.    None of the responses above is permitted; lawyers should not discuss anything about their clients’ cases or even acknowledge online comments and criticisms. 
B.    Option 1 is acceptable, but the rest are not. 
C.    Options 1 and 2 are acceptable because the lawyer didn’t reveal any confidential information in the responses. 
D.    Options 1, 2 and 3 are acceptable because the attorney limited her online discussion to items the client raised first. 
E.    All are acceptable because the ethics rules permit lawyers to disclose client confidences when defending themselves against a client’s accusations of wrongdoing.  

View the Answer.

Posted: 10/27/2019 12:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - October 2019

That’s What Friends Are For

Lawyer A is an attorney in a West Texas county . He knows all the lawyers and judges in the county, including the lone District Court judge, Judge B, who was a college roommate and has remained a close friend.

Lawyer A tried a case in Judge B’s court representing Client C, who was rendered paraplegic by an accident while working as a subcontractor on a construction project. Lawyer A sued the General Contractor on behalf of Client C, his wife, and their three young children. The jury failed to find that the General Contractor exercised or retained control over Client C, but it did find $18 million in damages. 

Applying Chapter 95 of the Civil Practice & Remedies Code, Judge B signed a take-nothing judgment in favor of the General Contractor. Lawyer A filed a lengthy motion for new trial challenging the jury’s failure to find control by the General Contractor, with extensive quotations from the trial transcript. 

While the motion was pending, Lawyer A and Judge B attended a birthday party for a mutual friend at his ranch. When they found themselves alone at the keg, Judge B said, “I spent the day poring over your motion for new trial. You did a solid job on that. Gave me a lot to think about. This one won’t be easy.” 

Lawyer A responded, “I appreciate that. Just trying to do the best job I can do for my clients. This means everything to them.” 

Judge B replied, “Of course it does, I get that. But you know I’m going to have to do what I think is right.” 

Lawyer A responded, “You always do. That’s what I respect about you.” They did not speak again the rest of the evening.

With respect to the rules prohibiting ex parte conversations, which is most accurate?

A:  Neither violated the rules, this was a harmless social conversation.
B.  Both Lawyer A and Judge B violated the rules.
C.  Judge B violated the rules, but Lawyer A did nothing improper.
D.  Judge B did nothing wrong because he was not addressing the merits of the pending matter, but Lawyer A violated the rules by trying to influence Judge B.

View the Answer.

Posted: 9/27/2019 12:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - September 2019

Sharing is Caring

Lawyer A has a corporate transactional practice at Law Firm X.  She announces to the firm that she is leaving the firm in two weeks to join Law Firm Y.  She lets the firm know which matters she will be taking with her to the new firm.  

Unbeknownst to anyone at Law Firm X, she photocopies some paper documents and downloads electronic versions of many other documents onto a flash drive. These documents are from client matters she handled for clients of law Firm X who are not going with her to Law Firm Y.  She intends to keep these documents in her personal files for use as forms in drafting documents for her new clients at Law Firm Y.  

Once she begins working at Law Firm Y, her new colleague, Lawyer B, asks Lawyer A for a form for a specific type of transaction.  Because Lawyer A only has a paper copy of that particular form, Lawyer A makes a photocopy of that document and gives it to Lawyer B.  Before she does so, she confirms that the client of Law Firm X identified in the document is not adverse to Law Firm Y. 

Lawyer B is so pleased with the form that he asks Lawyer A if she has any forms on another specific type of transaction.  Lawyer A replies that she does, but before giving him the document, she again checks conflicts and discovers that the client for whom it was prepared at Law Firm X is adverse to Law Firm Y.  Fortunately, the document is electronic and stored on her personal flash drive, so before providing it to Lawyer B she deletes all information that specifically identifies, or could reasonably lead to identifying, the client.  She provides the redacted document to Lawyer B.  

Which is most accurate? 

A.    Lawyer A has violated the ethics rules by not securing Law Firm X’s permission to take copies of documents from her matters at Law Firm X before leaving the firm.  
B.    Lawyer A violated the ethics rules by sharing an unredacted form with one of her new colleagues at Law Firm Y. 
C.    Lawyer A violated the ethics rules by sharing the redacted form with a colleague at Law Firm Y because the document was prepared for a client of Law Firm X and that client paid for its creation.    
D.    All of the above. 
E.    None of the above 

View the Answer.

Posted: 8/27/2019 12:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - July 2019

Partner Y sued Partner X for breaching their partnership agreement when kicked Y out of the partnership.  X concedes kicking Y out of the partnership, but contends he was justified because Y was stealing company monies and acting contrary to the partnership’s best interest. Lawyer A represents Partner X, and Lawyer B represents Partner Y in the breach of partnership suit.  

Partner X has counterclaimed against Y for fraud and conversion of partnership monies.  The litigation has continued for months, and settlement discussions have gone nowhere.  In a conversation before trial, Lawyer A tells Lawyer B, “Look, let’s get real about what is going to happen next.  Your client faces significant liability at trial and has no real defenses to his misappropriation.  Plus, your client could end up in jail for stealing partnership money.  What am I missing here?”

Lawyer B responds by claiming that Lawyer A has violated a disciplinary rule by saying anything about the possibility of Partner Y going to jail during settlement discussions.  Lawyer B files a grievance against Lawyer A and hopes that the grievance will be enough to get Lawyer A to recommend that that his client come back to the negotiating table with a reasonable offer.  Lawyer A receives the State Bar notice of Lawyer B’s grievance by mail two days before a mediation between the parties.

Which of the following is most accurate?  

A.    Only Lawyer A has violated a disciplinary rule by threatening criminal prosecution in a civil matter; Lawyer B cannot violate a disciplinary rule because complainants have absolute and unqualified immunity in filing grievances
B.    Only Lawyer B has violated a disciplinary rule by filing a grievance against Lawyer A; Lawyer A’s conduct does not rise to the level of an actual threat 
C.    Lawyers A and B have both violated disciplinary rules.
D.    Neither A nor B has violated disciplinary rules.

View the Answer

Posted: 6/27/2019 10:54:52 AM by Editor | with 0 comments

Ethics Question of the Month - June 2019

Client X hired Lawyer A to represent him in a tort case three months before the two-year statute of limitations expired.   Lawyer A’s investigation encountered some obstacles, and he was handling numerous other cases at the same time.  He calculated the limitations deadline incorrectly and missed it by two days, but he filed the suit anyway to see if the defendant would raise limitations.  She did, and the court dismissed the case.  Client X filed a grievance against Lawyer A.

Client X then consulted with Lawyer B about his malpractice claim against Lawyer A.  Lawyer B is a two-year family law attorney who has never handled anything other than family law matters; he has no experience with legal malpractice cases.  Further, Lawyer B has argued two motions in court and defended several depositions in family law cases.  He has yet to take a deposition because he has been working with experienced family law attorneys who handle most of the litigation in his matters.  Client X wants Lawyer B to file suit right away and move forward on the malpractice claim.  Lawyer B is worried about taking the malpractice case, but decides that he wants to help Client X because his client says that other lawyers won’t sue Lawyer A.

Which of the following is most accurate?  

A.    Both lawyers have legitimate grievance problems under the Texas rules.
B.    Neither lawyer has a legitimate grievance problem under the Texas rules.
C.    Lawyers A should be sanctioned, but Lawyer B should not. 
D.    Lawyers B should be sanctioned, but Lawyer A should not.
E.    Lawyer A should be sanctioned, but we don’t have enough information about Lawyer B to know whether he has a legitimate grievance problem.

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Posted: 5/29/2019 2:02:23 PM by Editor | with 0 comments

Ethics Question of the Month - May 2019

Lawyer A represents 33 homeowners in a suit against Company X, which does seismic testing for oil and gas.  The company uses underground dynamite blasts to generate seismic waves.  The homeowners have claimed structural damage to their foundations, walls, driveways, and sidewalks resulting from the seismic waves generated by Company X.  The damage experienced by individual homeowners varies according to the value of their property, the extent of the damage, and the cost of repairs.   

Lawyer A sent individual settlement demands to Company X for all 33 clients.  After initial negotiations, 11 of the clients agreed to accept Company X’s settlement offers.  The remaining 22 clients refused to accept Company X’s original individual offers.   Lawyer A and Company X’s lawyers go to mediation to resolve the remaining 22 claims.  At the end of the mediation, Company X offers a single gross settlement amount to resolve the remaining 22 claims and tells Lawyer A that, in return, it requires 22 releases or the overall offer will be withdrawn.  

Lawyer A decides to apportion the gross amount among her clients, but holds back 10% of the gross amount in case any clients don’t agree to their individual offers.  Two clients refuse their individual settlement offers.  Lawyer A uses most of the 10% that she held back to increase the offers to the two holdout clients, and they agree to the increased offer.  Lawyer A then redistributes what is left of the 10% to the remaining 20 clients involved in the mediation on a pro rata basis so that all of the gross settlement amount offered by Company X is now distributed to the 22 clients involved in the mediation.

Which of these statements is most accurate? 

A.    Lawyer A has done an admirable job of settling all of her clients’ claims in a complicated case and a difficult situation.  Although imperfect in some ways, the settlement method complies with the Texas disciplinary rules.

B.    We don’t know enough detail about the settlement method to judge whether Lawyer A has fully complied with applicable disciplinary rules.

C.    Lawyer A’s solution is permissible, except for holding back 10% of the gross settlement amount to disproportionately reward uncooperative clients.

D.    Lawyer A should not have reached a settlement on behalf of the first 11 clients until the claims of the remaining 22 were also resolved.  Therefore, none of the settlements are permissible under the Texas disciplinary rules.  

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Posted: 4/28/2019 12:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - April 2019

Scenario 1: Lawyer A represents a long-time client, Client B, in various real estate transactions.  After several years, Lawyer A asks to invest in an upcoming real estate development project for which Client B needs investors.  Lawyer A also perceives that her interests are aligned with the client’s interests because both want the project to succeed.  Client B welcomes Lawyer A’s investment.  They agree that Lawyer A will invest $50,000, and contribute her legal services, in exchange for a 10% equity share in the development. As part of her contribution of legal services, the lawyer prepares the paperwork documenting the investment agreement.

Scenario 2:  A few months later, Client B decides to start a company to create and sell real estate development software.  Client B has enough investors and capital to start the company, but is concerned about managing the start-up’s legal costs and other expenses.  Client B offers the lawyer shares of stock in the new company in exchange for legal services.  Client B proposes a formula that awards two shares of stock for every hour of services spent by Lawyer A.  Lawyer A’s hourly rate is $250.  There is a risk that the start-up may fail and Lawyer A’s stock will be worthless; there is also the possibility that the start-up could be successful and that Lawyer A’s shares could be worth significantly more than the value of her legal services at her usual hourly rate.

Which statement most accurately addresses whether these Scenarios are acceptable?

A.    Both Scenarios 1 and 2 are acceptable, and are commonplace.
B.    Scenario 2 is acceptable, but Scenario 1 is not.
C.    Scenario 1 is acceptable, but Scenario 2 is not.
D.    Both Scenarios are per se unacceptable.
E.    We don’t have sufficient facts to know whether either Scenario is acceptable.

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Posted: 3/28/2019 12:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - March 2019

Lawyer A represents Client B in a partnership dispute against Partner C.  After extensive discovery, the court orders the parties to mediation two months before the trial setting.   

At the mediation session, Partner C makes a credible settlement offer to Client B.  Lawyer A recommends that Client B accept that offer.  Client B refuses and demands to go to trial unless Partner C makes a substantially higher offer.

Lawyer A is concerned that Partner C came across much better in his deposition than Client B, and the documents seem to support Partner C’s position. Lawyer A thinks there is a good chance that Partner C will prevail at trial, or, even if Client B prevails, his damage model is weak, and the jury is very likely to award damages significantly less than Partner C’s current settlement offer. Of course, a modest recovery by Client B means a modest contingent fee for Lawyer A.  Accordingly, Lawyer A tells Client B that he will withdraw his representation unless Client B accepts the settlement offer.  

Lawyer A tells Client B that he can hire a new lawyer and take this case to trial if he wishes. He also tells the client that the court will grant a continuance of the current trial setting because this is only the second trial setting.   The likely continuance should provide Client B plenty of time to hire new counsel.

Which statement most accurately addresses whether Lawyer A can withdraw? 

A.    Lawyer A can withdraw, but only after he secures a continuance of the current trial setting.
B.    Lawyer A can withdraw unconditionally because his client is making the representation unreasonably difficult by not accepting a recommended settlement offer.
C.    Lawyer A cannot withdraw because, under these circumstances, withdrawal would have a materially adverse effect on the client.
D.    Lawyer A cannot withdraw because he cannot guarantee that he will be able to persuade the court to grant a continuance.
E.    We don’t have enough facts to know whether Lawyer A can withdraw.

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Posted: 2/27/2019 12:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - February 2019

Lawyer A worked at Firm XYZ.   Firm XYZ represented Company Z in numerous litigation and transactional matters.  While at Firm XYZ, Lawyer A worked on several of Company Z’s employment litigation cases.  

Lawyer A then left Firm XYZ and moved to Firm JKL.  Firm JKL represents clients who are adverse to Company Z in breach-of-contract cases.  Firm JKL wants Lawyer A to be available to represent clients against Company Z, but, for the moment, it is content to have Lawyer A doing other litigation.  

Firm XYZ knows that Firm JKL is adverse to its client, Company Z, and that Lawyer A has joined Firm JKL.  Firm XYZ asserts a conflict and objects to Firm JKL being adverse to Company Z because Lawyer A is has joined Firm JKL.

Which of these statements is the most accurate?

A.    Firm JKL has a conflict in being adverse to Company Z because Lawyer A is a member of Firm JKL and is Company Z’s former attorney.

B.    Firm JKL would have a conflict in being adverse to Company Z, but Firm XYZ didn’t timely object when it learned that Lawyer A was joining Firm JKL.

C.    Firm JKL has a potential conflict, which can be cured by screening Lawyer A from any representation adverse to Company XYZ.

D.    Screening Lawyer A from Company Z won’t cure the conflict because the screen was not in place before Lawyer A arrived at Firm JKL; otherwise it would have worked.

E.    Firm JKL has no conflict arising from Lawyer A being adverse to Company Z in breach of contract cases because they are not substantially related to the employment litigation cases where Lawyer A represented Company Z while at Firm XYZ.  

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Posted: 1/30/2019 8:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - January 2019

A lawyer represents Client A.  During the representation, the lawyer has access to Client A’s files, including documents regarding lawsuits in which the lawyer did not represent Client A.  Some of these documents are filings from lawsuits in which Client A was sued for fraud.  The lawyer’s representation of Client A terminates.  

The lawyer subsequently is asked to represent a new client, Client B, who is adverse to Client A.  This new representation would be factually unrelated to any of the matters in which the lawyer represented Client A. However, Client B has fraud claims against Client A that are similar to prior fraud claims that the lawyer learned of in reviewing Client A’s files during the prior representation.

The lawyer believes that the information that he learned about these prior fraud allegations against Client A could be relevant to Client B’s claims against Client A.  The lawyer wonders whether he could share information about Client A’s other lawsuits, find those filed pleadings at the courthouse, and potentially use that information to show that Client A has a pattern of committing fraud in the same way that Client B now claims.

The lawyer is aware that Rule 1.05(b)(3) of the Texas Disciplinary Rules of Professional Conduct states that a lawyer shall not knowingly “[u]se confidential information of a former client to the disadvantage of the former client after the representation is concluded unless . . . the confidential information has become generally known.”  

The lawyer thinks he can tell potential Client B about these other lawsuits because (1) the lawyer did not represent his Client A in those matters, and (2) the information that he knows is available to anyone who looks for it in the court’s files.  Which is most accurate?  

A.    The lawyer can share the information because he did not represent Client A in those matters, and Client A’s other suits are “generally known” because they were public filings.
B.    The lawyer can disclose to Client B what he remembers about Client A’s documents because he did not represent Client A in those matters. However, the prior fraud lawsuits are not “generally known” under the Rule 105(b)(3) exception.
C.    The lawyer cannot disclose to Client B what he remembers about Client A’s documents, even though he didn’t represent Client A in those matters. But he can direct Client B to the courthouse and suggest looking for other lawsuits against Client A.  
D.    The lawyer cannot reveal what he remembers from Client A’s files, nor can he direct Client B to the courthouse to search for other lawsuits.
E.    The lawyer should not represent Client B at all.  

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Posted: 12/29/2018 8:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - December 2018

I Know What You Did

Lawyer A represents Client X in a family law case.  Client X has told Lawyer A he has struggled with substance abuse and continues to use cocaine occasionally.  

 Client X’s wife had similar substance abuse issues, but she appears to be in sustained recovery. Client X wants primary custody and appears reconciled to admitting his occasional cocaine use and seeking treatment.  

The wife’s lawyer takes Client X’s deposition and asks him if he still uses cocaine.  Client X denies any cocaine use since the couple separated.  Lawyer A asks no questions at the deposition, but later confronts his client about his denial of current drug use.  Client X promises not to lie about his cocaine use again.  Lawyer A does nothing further, and Client X does not correct his deposition testimony.

At trial, Lawyer A doesn’t raise cocaine use, but does ask Client X to generally tell the jury why he believes that he is a fit parent.  Lawyer A assumes that Client X will avoid talking about drug use, but Client X again says he has not used anything since the couple’s break-up.   Hoping that his client won’t continue to perjure himself, Lawyer A drops the subject and quickly wraps up his direct examination.

On cross-examination, opposing counsel is ready to pounce but doesn’t have any impeachment evidence that Client X is lying.  He can’t shake Client X’s repeated denials of drug use since the couple’s separation.  

The jury awards primary custody to Client X at the end of the first week of trial.  The trial will continue the following week with the property division tried to the Court without a jury.  Over the weekend, Lawyer A confronts his client and insists that he not further perjure himself during the second week.  

Which is Lawyer A’s best course of action?  

A.    Lawyer A has acted appropriately in preserving what he learned from privileged conversations with Client X and should do nothing to undermine the attorney-client relationship.
B.    Lawyer A should withdraw before the second week of trial so that he can avoid disclosing his client’s perjury when court resumes.
C.    Lawyer A cannot withdraw, but does not need to take further action as long as he doesn’t affirmatively encourage Client X to lie.
D.    Lawyer A cannot withdraw and must take steps to address his client’s lies, including disclosure to the court of the true facts.  

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Posted: 11/29/2018 7:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - November 2018

No Free Ride

Scenario 1.  Criminal defense lawyer X agrees to represent Client A in a DWI.  The fee agreement requires a $5,000 nonrefundable retainer that covers all legal services up to trial.  If a trial is required, the agreement provides for a nonrefundable “trial fee” of $10,000.  Client A pays the first $5,000 fee but is unable to pay the $10,000 when it becomes clear that a trial will be necessary.   Lawyer X withdraws from the representation.

Scenario 2.  Criminal defense lawyer Y agrees to represent Client B on an assault charge.  The fee agreement provides for a nonrefundable flat fee of $20,000 for the entire representation, including trial.  Client B becomes dissatisfied and terminates Lawyer Y just before trial.   Client demands a partial refund in order to hire another lawyer for trial.  Lawyer Y refuses any refund because the $20,000 flat fee was expressly “nonrefundable.”

Scenario 3.  Criminal defense lawyer Z agrees to represent Client C on a felony theft charge.  The fee agreement provides for multiple fees: $2500 nonrefundable retainer upfront; $5000 flat fee for services before trial; and then an hourly fee of $350 during and after trial, up to final judgment.

Which fee arrangements are ethical?

A.    All three fee arrangements are ethical.  
B.    Lawyer X’s fee agreement is ethical, but the other two are not.
C.      Lawyer X’s and Lawyer Y’s fee agreements are ethical, but Lawyer Z’s is not.  
D.    Lawyer Z’s fee agreement is ethical, but the other two are not.

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Posted: 10/29/2018 12:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - October 2018

Your Results May Differ

A law firm’s website advertises the services of a commercial litigator in the firm. The website touts the lawyer’s past successes, including:

1.    “Won a $2.1 million jury verdict for the plaintiff in a case involving a partnership dispute.”
2.    “Obtained an $8 million settlement in a case between two companies in which the plaintiff company made fraud claims.”
3.    “Negotiated a $450,000 net recovery in a contract dispute in arbitration.”
4.    “Obtained a permanent injunction against a former employee under a non-compete agreement.”
5.    “Served as local counsel in an appeal in which a $5 million tortious interference judgment was affirmed.”
6.    “Obtained a defense jury verdict of no liability in a case alleging $15 million in damages.”

Which of these descriptions of past successes is proper under the Texas lawyer advertising rules?

A.    #1, #5 and #6 are proper, but the rest are improper.
B.    #3 and #4 are proper, but the rest are improper 
C.    #4 is proper, but the rest are improper.
D.    #2 and #4 are proper, but the rest are improper.

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Posted: 9/29/2018 12:00:00 AM by Editor | with 0 comments

Ethics Question of the Month - September 2018

What’s in a Name?

Law firm Abel, Baker, Caldwell & Dodd (“ABC&D”) has four name partners.  Partner Abel decides to retire from practicing law and leaves the firm.  Baker decides to leave the firm to open a solo practice under his own name. 

The remaining partners wish to continue to practice under the same firm name because it is well known in the community.  Abel and Baker both agree to allow ABC&D to continue to use their names in exchange for payment. 

Three years later, Abel decides he’s tired of retirement and opens a solo practice under his own name.  Under the current Ethics Opinions issued by the Professional Ethics Committee for the State Bar of Texas, which of the following is accurate?

  1. ABC&D may continue with the same name even though Abel and Baker are practicing elsewhere and no longer have any association with the firm
  2. ABC&D may continue to use Abel’s name, but not Baker’s
  3. ABC&D may continue to use Baker’s name, but not Abel’s 
  4. ABC&D may not use either Abel’s name or Baker’s name 


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Posted: 8/30/2018 2:25:14 PM by Editor | with 0 comments

About Ethics Question of the Month

Ethics Question of the Month is a regular feature of the Texas Bar Journal created and sponsored by the Texas Center for Legal Ethics.

DISCLAIMER: The information contained in Ethics Question of the Month is intended to illustrate an ethics issue of general interest in the Texas legal community; it is not intended to provide ethics advice that applies regardless of particular facts.  For specific legal ethics advice, readers are urged to consult the Texas Disciplinary Rules of Professional Conduct (including their official comments) and other authorities and/or a qualified legal ethics advisor.

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