Can a lawyer dismiss a client's pending suit at the client's request without contacting the attorneys of record already handling it?

Plain-English summary

The inquiry described attorneys X and Y, who, employed by A, obtained a court order restraining a sheriff's execution sale of a place of business and prepared to argue for a temporary injunction. A day or two before the hearing, attorney B, at A's request and without the knowledge of X and Y, and without anyone contacting them, dismissed the suit. The question was whether B was guilty of unethical conduct.

Under the bare facts, all members concluded that B acted clearly unethically, citing Canons 7 and 9 (9-0). The Committee reasoned that since X and Y were attorneys of record, B would have known they represented A; and if their names were not of record, B was under a duty to ascertain who represented A and contact them before dismissing the suit. The Committee added that even if B had merely represented the debtor and moved to dismiss the restraining order after the judgment was satisfied, B should still have contacted X and Y, ascertained whether their fee had been paid, and secured their consent. The Committee stated that if B accepted employment to dismiss the suit and did so without contacting X and Y or obtaining their knowledge or consent, B acted highly unethically, should be strongly condemned, and the matter should be referred to the appropriate Grievance Committee.

Currency note

This opinion was issued in 1957, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer take over and dismiss a suit the client's other lawyers are handling?

A: The Committee concluded that dismissing the suit without contacting the attorneys of record, or obtaining their knowledge or consent, was unethical under Canons 7 and 9.

Q: What duty did the incoming lawyer have toward the existing attorneys?

A: The Committee said that if the attorneys' names were not of record, the incoming lawyer was under a duty to ascertain who represented the client and contact them before dismissing the suit.

Q: What did the Committee say should happen?

A: The Committee stated the conduct should be strongly condemned and the matter referred to the appropriate Grievance Committee.

Background and rules framework

The opinion interprets former Texas Canons 7 (encroaching on the employment of another lawyer) and 9 (communicating about the controversy with a represented party). The modern analog most closely connected is ABA Model Rule 4.2 (communication with a person represented by counsel); the duty to coordinate with existing counsel of record now arises through the rules and procedural law governing appearance and substitution.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a represented person), as the modern analog
• Texas Canons 7 and 9 (former canons on encroaching on another's employment and communicating with a represented party)

See also

• TX Ethics Op. 172: Fee-Splitting With a County Attorney and Refusing to Withdraw
• TX Ethics Op. 170: Copying a Represented Opposing Party on a Settlement Letter
• TX Ethics Op. 176: Suing One Contract Party After Drafting for Both

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-159/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_159.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

"X" and "Y," pursuant to employment by "A" obtained a court order restraining the sheriff from selling a place of business under execution. "X" and "Y" made preparations to attend a hearing and to present arguments to secure a temporary injunction. A day or two prior to such hearing, "B," another attorney, at the request of "A" and without the knowledge of "X" and "Y" and without either "A" or "B" having contacted "X" and "Y," dismissed said suit. Was "B" guilty of unethical conduct?

18 Baylor L. Rev. 263 (1966)

PROFESSIONAL COLLEAGUES - INTERVENTION BY AN OTHER ATTORNEY
For an attorney to dismiss a suit at the behest of a client without either one contacting the attorney who had been employed previously by the client to present it is manifestly improper.

Canons 7, 9.

Under the bare facts presented, all members of the committee are of the opinion that "B" was clearly unethical. Texas Canons of Ethics 7 and 9 are cited to support such view.

Since "X" and "Y" were undoubtedly attorneys of record, "B" would have known they represented "A." If their names did not appear of record, "B" was under duty to ascertain who represented "A" and to have contacted them before dismissing such suit. It is assumed "X" and "Y" were diligent in their duties to "A." It is suggested that since it was not stated "B" had been "employed" by "A," that "B" might have represented the debtor and merely moved for the dismissal of the restraining order, at the request of "A," after the judgment had been satisfied, but that even under such circumstances "B" should have contacted "X" and "Y," ascertained whether their fee had been paid, and have secured their consent to the dismissal.

All of the members of the committee feel very strongly that if "B" accepted employment from "A" to dismiss said suit, and did so without having contacted "X" and "Y" and without their knowledge or consent that "B" acted highly unethically and should be strongly condemned and that the matter should be referred to the appropriate Grievance Committee for action. (9-0)

Tex. Comm. On Professional Ethics, Op. 159 (1957)