While deposing a represented opposing party, can a lawyer advise that party about the law involved in the case?

Plain-English summary

The Committee was asked whether it is proper, when taking the deposition of an opposing party represented by counsel, for an attorney to advise that opposing party about the law involved in the controversy.

The Committee concluded that it is not proper for an attorney to advise a represented opposing party about the law involved through the guise of a deposition. It added that this applies even where the opposing party's counsel is not an attorney of record but is in fact the attorney for that party. The Committee cited Canon 9 and prior Opinions 130, 201, and 342.

Currency note

This opinion was issued in 1971, under the former Texas Canons and Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Communication with a person represented by counsel is now governed by Texas Rule 4.02 and ABA Model Rule 4.2. 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 Treat this page as historical context, not current guidance.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: May a lawyer advise a represented opposing party on the law during that party's deposition?

A: No. The Committee concluded that an attorney may not advise a represented opposing party about the law involved in the controversy through the guise of a deposition.

Q: Does it matter whether opposing counsel is the attorney of record?

A: No. The Committee said the prohibition applies even where the opposing party's counsel is not an attorney of record but is in fact the attorney for that party.

Q: What rule did the Committee rely on?

A: It cited Canon 9, together with prior Opinions 130, 201, and 342.

Background and rules framework

The opinion interprets former Texas Canon 9, addressing communications directed to a party represented by other counsel. The modern analog is Texas Rule 4.02 and ABA Model Rule 4.2 (communication with a person represented by counsel).

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a person represented by counsel), as the modern analog
• Texas Canon 9 (former Texas Canons of Ethics)

Other opinions cited:

• Texas Ethics Opinions 130, 201, 342

See also

• TX Ethics Op. 358: Copying the Opposing Party on Letters to Opposing Counsel
• TX Ethics Op. 488: Advising a Client to Contact a Represented Creditor Directly
• TX Ethics Op. 461: Contacting Employees of a Represented Corporate Defendant

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-355/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_355.pdf

Original opinion text

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

QUESTION PRESENTED

Is it proper for an attorney when taking the deposition of an opposing party represented by counsel to advise the opposing party as to the law involved in the controversy when taking such party's deposition?

23 Baylor L. Rev. 896 (1972)

Canon 9

It is not proper for an attorney to advise the opposing party represented by counsel as to the law involved through the guise of a deposition. This applies even if such opposing party's counsel is not an attorney of record but is in fact the attorney for such opposing party. See Canon 9, also Opinions 130, 201 and 342.

An attorney should not advise an opposing party represented by counsel as to the law involved in the controversy through the guise of a deposition.

Tex. Comm. On Professional Ethics, Op. 355 (1971)