Opinions

All opinions of the Committee on Professional Ethics are available online here.  To locate a specific opinion or opinions, enter the opinion number or keyword in the appropriate search box below. Licensed attorneys may also call 877-953-5535 for access to opinions

The Committee on Professional Ethics issues opinions pursuant to Tex. Gov’t. Code §81.091- 81.095.  §81.091(a) states that “[t]he committee shall, either on its own initiative or when requested to do so by a member of the state bar, express its opinion on the propriety of professional conduct other than on a question pending before a court of this state.”   The nine members of the Committee are appointed by the Supreme Court of Texas.

For proposed opinions open for comment, visit the State Bar of Texas website.

  • Opinion 518

    Canon:
    Opinion #: 518
    Cite: Tex. Comm. on Professional Ethics, Op. 518, V. 59 Tex. B.J. 795 (1996)
    Date: September 1996

    May an attorney enter into a contingency fee arrangement where the attorney is to be paid the greater of (a) the fee that would be charged for the same services on an hourly basis or (b) a percentage of the amount recovered for the client?

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  • Opinion 517

    Canon:
    Opinion #: 517
    Cite: Tex. Comm. on Professional Ethics, Op. 517, V. 59 Tex. B.J. 795 (1996)
    Date: September 1996

    Telephone records of an attorney for a governmental entity that is subject to the Texas Open Records Act, Vernon’s Tex. Codes Ann., Government Code ?552.001 et seq. are requested under the provisions of such act. Are the requested records “confidential information” subject to the limitations on disclosure of DR 1.05 of the Texas Disciplinary Rules of Professional Conduct?

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  • Opinion 516

    Canon:
    Opinion #: 516
    Cite: Tex. Comm. on Professional Ethics, Op. 516, V. 59 Tex. B.J. 647 (1996)
    Date: July 1996

    An attorney has a valid, active law license issued by a state or jurisdiction in the United States other than Texas, and such attorney is not licensed to practice law in Texas (the A out-of-state attorney @ ). The out-of-state attorney intends to represent clients in Texas solely on immigration and nationality law matters before the United States Immigration and Naturalization Service and in federal courts. 1.   Do the following activities of the out-of-state attorney violate the Texas Disciplinary Rules of Professional Conduct? (a) Out-of-state attorney travels to Texas to appear and represent a client in Texas solely before the U.S. Immigration and Naturalization Service on an isolated matter; (b) Out-of state attorney establishes an office in Texas and represents clients in Texas solely on immigration and nationality law matters before the U.S.Immigration and Naturalization Service and in federal courts; and (c) Out-of-state attorney resides in Texas, becomes an employee of an attorney who is licensed in Texas, and in connection with such employment the out-of-state attorney represents clients in Texas solely on immigration and nationality law matters before the U.S. Immigration and Naturalization Service and in federal courts. 2.   If the out-of-state attorney who holds himself or herself out to the public as practicing A solely federal law @ in Texas, but does in fact advise clients in Texas concerning legal matters other than in federal court proceeding or before the U.S.Immigration and Naturalization Service is the out-of-state attorney subject to discipline by the State Bar of Texas for violating the Texas Disciplinary Rules of Professional Conduct? 3.   Is an out-of-state attorney who represents clients in Texas solely on immigration and nationality law matters before the U.S. Immigration and Naturalization Service and in federal court proceedings required to disclose in advertising the fact that the out-of-state attorney is not licensed to practice law in Texas and, in fact, is licensed as an attorney in a state or jurisdiction other than Texas? 4.   Does Texas law limit or prevent the out-of-state attorney, who practices law in Texas solely on immigration and nationality law matters before the U.S. Immigration and Naturalization Service and in federal courts, from engaging in any the activities set forth in (a), (b), or (c) of question one?

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  • Opinion 515

    Canon:
    Opinion #: 515
    Cite: Tex. Comm. on Professional Ethics, Op. 515, V. 59 Tex. B.J. 646 (1996)
    Date: July 1996

    May a Texas attorney enter into an arrangement with a contract lawyer placement agency under which the agency will seek to place the attorney with law firms or corporate legal departments for work on short-term legal projects?

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  • Opinion 514

    Canon:
    Opinion #: 514
    Cite: Tex. Comm. on Professional Ethics, Op. 514, V. 59 Tex. B.J. 181 (1996)
    Date: February 1996

    1.   May a lawyer, in the course of his or her practice of law, ethically electronically record a telephone conversation to which the lawyer is a party, without first informing all other parties to the conversation? 2.   May a lawyer ethically advise a client to tape record a telephone conversation to which the client is a party without first informing all other parties to the conversation?

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  • Opinion 513

    Canon:
    Opinion #: 513
    Cite: Tex. Comm. on Professional Ethics, Op. 513, V. 59 Tex. B.J. 84 (1996)
    Date: June 1995

    Texas Disciplinary Rule 3.08 states that a lawyer shall not act as attorney in a case in which he or she knows or believes that the lawyer is or may be called as a witness, unless the testimony falls within one of the exceptions set out in the rule. Although this rule does not precisely address the service of attorneys as expert witnesses, the rule is applicable here as described in Warrilow v. Norrell , 791 S.W.2d 515 (Tex.App.--Corpus Christi 1989, writ denied). In this case, the appeals court found that the trial court abused its discretion by allowing one of the party's attorneys to testify as an expert witness. The court stated that a different expert witness could have and should have been used. Rule 5.03 of the Texas Disciplinary Rules makes such rules applicable to non-lawyers who are employed by, retained by or associated with a lawyer. Such lawyer shall make reasonable efforts to ensure that the non-lawyer is in compliance with these rules. Therefore, under Rule 5.03, if an attorney may not testify as an expert witness, neither may an employee of that attorney serve as a testifying expert witness. Furthermore, as a testifying expert witness, the accountant's working papers, reports and any material reviewed by the accountant would be subject to discovery. The use of the law firm's in-house Certified Public Accountant could lead to a waiver of attorney-client privilege once he is designated a testifying expert. According to Texas Disciplinary Rule 1.05, no exceptions exist in this situation for the lawyer to waive that privilege. As discussed above, if the lawyer cannot waive the attorney-client privilege, neither can an employee of that lawyer. Therefore the naming of the employee as an expert witness could constitute a violation of Rule 1.05 because of the waiver of the attorney-client privilege.

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  • Opinion 512

    Canon:
    Opinion #: 512
    Cite: Tex. Comm. on Professional Ethics, Op. 512, V. 58 Tex. B.J. 1147 (1995)
    Date: June 1995

    May the in-house lawyer of a corporation represent a joint venture in which the corporation is a venturer, without violating Texas Disciplinary Rule 1.06, Conflict of Interest, and/or Texas Disciplinary Rule 5.05, Unauthorized Practice of Law?

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  • Opinion 511

    Canon:
    Opinion #: 511
    Cite: Tex. Comm. on Professional Ethics, Op. 511, V. 58 Tex. B.J. 1146 (1995)
    Date: January 1995

    May a law firm represent two children in a civil action concerning an auto accident in which the children's mother was killed and the children's father was involved and is a possible defendant if: (1) the law firm represents the father with respect to the mother's estate and had previously represented the father with respect to criminal charges arising from the auto accident, and (2) the father, but not the children's guardian, has waived any conflict of interest with respect to the law firm's representation of the children? The wife sued her husband for divorce, seeking custody of their two children. The husband was represented in the divorce by the M & M Law Firm. While the divorce was pending, the wife was killed in an auto accident. The husband was driving his wife's car and she was his passenger when they ran into a truck. The husband alleges that the truck driver violated the law. The husband survived the accident, was found to be intoxicated, and was charged with DWI and manslaughter. The M & M Law Firm represents the husband against the criminal charges and he is no billed by the grand jury as to the manslaughter charge. M & M files pleadings for the husband in the probate court to make the husband administrator of his wife's estate. The wife's mother files pleadings in probate court contesting the husband's right to be administrator, citing conflict of interest. The wife's mother, individually and as next friend of the wife's two children, files a lawsuit in district court against the trucking company and against the husband. An answer is filed for the husband by another law firm hired by the husband's insurance company. The probate court appoints a neutral third party to be guardian of the estates of the two children. The guardian seeks court permission to sign a contingent fee contract with the BBB Law Firm to represent the two children with the intention to sue the trucking company and the husband. The M & M Law Firm files its own motion to represent the children, citing an earlier contract signed by their father. M & M withdraws as the husband's attorney regarding any civil claim arising from the auto accident. M & M continues to represent the husband regarding the estate and the guardianship of the persons of the children. The husband announces that he waives any conflict of interest regarding his children's claims and his representation by M & M. If M & M represents the two children, it will have to sue the husband, its current client, or decide not to sue the husband and proceed only against the trucking company. M & M contends that the husband's intoxication was not a cause of the wreck and points out that the husband has minimal insurance coverage and the trucking company has more than adequate insurance coverage. The neutral guardian appointed to manage the estates of the children believes the husband should be named as a defendant. M & M states it will sue the husband if necessary.

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  • Opinion 510

    Canon:
    Opinion #: 510
    Cite: Tex. Comm. on Professional Ethics, Op. 510, V. 58 Tex. B.J. 1058 (1995)
    Date: December 1994

    May a Texas attorney provide legal services to a client under a contingent-fee arrangement in a litigation matter when the client also enters into a contingent-fee arrangement with a non-attorney investigator to perform investigation services in connection with the matter?

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  • Opinion 509

    Canon:
    Opinion #: 509
    Cite: Tex. Comm. on Professional Ethics, Op. 509, V. 58 Tex. B.J. 864 (1995)
    Date: October 1994

    Three attorneys decide to share office space and decide to put on the door graphics of their suite: SMITH, JONES AND WASHINGTON Law Offices of Independent Practitioners No other materials, such as letterhead, business cards, brochures or the like bear this statement or graphic. Contracts of Representation expressly denounce any association between the three attorneys, other than office sharing arrangements. 1.   Is such a violation of State Bar Rule 7.04(a)? 2.   Is such a violation of State Bar Rule 7.04(d)?

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