Does pleading a specific dollar amount for unliquidated damages, contrary to Texas Rule of Civil Procedure 47(b), violate a Texas lawyer's ethics obligations?

Plain-English summary

The inquiry asked whether pleading a dollar amount for unliquidated damages in an original pleading is an ethical violation.

The Committee began with Rule 47 of the Texas Rules of Civil Procedure, whose subpart (b) requires that, in claims for unliquidated damages, the pleading state only that the damages sought exceed the court's minimum jurisdictional limits. It then applied DR 7-106(C)(7), under which a lawyer appearing before a tribunal may not intentionally or habitually violate an established rule of procedure or evidence. Because signing a pleading is an appearance under Rule 10, and because DR 1-102(A) bars conduct that violates a disciplinary rule or is prejudicial to the administration of justice, the Committee tied a Rule 47(b) violation to the lawyer's ethical duties, reinforced by Canon 1, EC 1-5, and EC 7-25 on obedience to procedural rules.

Noting prior opinions that improper or false allegations in pleadings are unethical (Opinions 405, 337, and 213), and that the language of Rule 47(b) is mandatory, the Committee held, 9-0, that an attorney's intentional or habitual violation of Rule 47(b) constitutes a violation of the Code of Professional Responsibility.

Currency note

This opinion was issued in 1984, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. The current Texas rules are Rule 3.04 (fairness in adjudicatory proceedings, including obeying tribunal rules) and Rule 8.04 (misconduct), with closest ABA analogs Model Rules 3.4 and 8.4; Texas Rule of Civil Procedure 47 has itself been amended since 1984. Subsequent rule changes 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 Treat this page as historical context, not current guidance.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: Is pleading a specific damages figure for unliquidated damages an ethics problem in Texas?

A: Per the opinion, yes, when done intentionally or habitually. The Committee concluded that doing so violates the mandatory language of Rule 47(b), and that an intentional or habitual procedural-rule violation is itself a violation of the Code under DR 7-106(C)(7).

Q: Why does a procedural-rule violation become an ethics violation?

A: The Committee relied on DR 7-106(C)(7), which bars a lawyer before a tribunal from intentionally or habitually violating an established rule of procedure or evidence, reinforced by DR 1-102(A) and EC 7-25 on obeying such rules.

Q: Does signing the pleading matter?

A: Yes. The Committee noted that under Rule 10 an attorney's signing of a pleading constitutes an appearance, which brings the conduct within DR 7-106(C)(7)'s prohibition on procedural-rule violations before a tribunal.

Background and rules framework

The opinion interprets DR 7-106(C)(7) of the former Texas Code of Professional Responsibility (no intentional or habitual violation of established procedural or evidentiary rules before a tribunal) and DR 1-102(A) (no conduct violating a disciplinary rule or prejudicial to the administration of justice), applied to Texas Rule of Civil Procedure 47(b), and informed by Canon 1, EC 1-5, and EC 7-25. The closest current concepts are Texas Rules 3.04 and 8.04 and Model Rules 3.4 and 8.4. The analysis turns on the mandatory wording of Rule 47(b).

Citations and references

Rules of Professional Conduct:

• MR 3.4 (fairness to opposing party and counsel; obeying tribunal rules)
• MR 8.4 (misconduct)
• DR 7-106(C)(7), DR 1-102(A), Canon 1, EC 1-5, EC 7-25, Texas Code of Professional Responsibility

Rules of Procedure:

• Texas Rule of Civil Procedure 47 (pleading unliquidated damages)
• Texas Rule of Civil Procedure 10 (signing a pleading as an appearance)

Other opinions cited:

• Texas Professional Ethics Committee Opinions 405 (1983), 337 (1968), and 213 (1958): improper or false allegations in pleadings are unethical

See also

• TX Ethics Op. 585: Counseling a Client to Retain All Local Lawyers
• TX Ethics Op. 614: Conditioning Settlement on an Affidavit Acceptable to the Client

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-415/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_415.pdf

Original opinion text

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

QUESTION PRESENTED

Does an attorney's pleading of a dollar amount for unliquidated damages in an original pleading which sets forth a claim for relief constitute an ethical violation?

DISCUSSION

Rule 47 of the Texas Rules of Civil Procedure provides:
An original pleading which sets forth a claim for relief, whether an original petition, counterclaim, cross-claim, or third party claim, shall contain (a) a short statement of the cause of action sufficient to give fair notice of the claim involved, (b) in all claims for unliquidated damages only the statement that the damages sought exceed the minimum jurisdictional limits of the court, and (c) a demand for judgment for all the other relief to which the party deems himself entitled. Relief in the alternative or of several different types may be demanded; provided, further, that upon special exception the court shall require the pleader to amend so as to specify the maximum amount claimed. Tex.R.Civ.P. 47 (emphasis added).
Disciplinary Rule (DR) 7-106(C)(7) provides that in appearing in his professional capacity before a tribunal, a lawyer shall not intentionally or habitually violate any established rule of procedure or of evidence.

An attorney's act of signing his name to any pleadings filed in a case constitutes an appearance. Tex.R.Civ.P. 10.

DR 1-102(A) prohibits lawyers from engaging in conduct which violates a disciplinary rule or in conduct prejudicial to the administration of justice.

Canon 1 provides "A lawyer should assist in maintaining the integrity and competence of the legal profession," and Ethical Consideration (EC) 1-5 provides in part, "Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude."

EC 7-25 is especially pertinent:
Rules of evidence and procedure are designed to lead to just decisions and are part of the framework of the law. Thus, while a lawyer may take steps in good faith and within the framework of the law to test the validity of rules, he is not justified in consciously violating such rules and he should be diligent in his efforts to guard against his unintentional violation of them. As examples, a lawyer should subscribe to or verify only those pleadings that he believes are in compliance with applicable law and rules . . . . (emphasis added).
This Committee has on previous occasions determined that the inclusion of improper or false allegations in pleadings is unethical. See Ethics Opinions 405 (1983), 337 (1968), and 213 (1958).
The wording in Rule 47(b) set forth herein above is clearly mandatory.

An attorney's intentional or habitual violation of Rule 47(b) constitutes a violation of the Code of Professional Responsibility. (9-0.)

CONCLUSION

An attorney's intentional or habitual violation of Rule 47(b) constitutes a violation of the Code of Professional Responsibility. (9-0.)

Tex. Comm. On Professional Ethics, Op. 415 (1984)