Can a lawyer give the Texas Workers' Compensation Commission a general description of attorney-client conferences to get a fee approved, without breaching client confidentiality?

Plain-English summary

To claim a fee before the Texas Workers' Compensation Commission, an attorney must submit written evidence of time and expenses, and the Commission may request additional documentary evidence to evaluate the claim (Texas Workers' Compensation Rule 152.3). Here the Commission asked the attorney, on a fee application, to provide a general description of the nature of each client conference, with examples like "Discussed client's medical treatment" or "Discussed client's weekly income benefits." The question was whether providing that description violates Rule 1.05.

The Committee concluded the requested information is confidential information that ordinarily may not be disclosed to a third person unless a Rule 1.05 exception applies. But because the request sought a general description of the nature of conferences, not the substance of communications, the Committee concluded it normally would be confidential but not "privileged information" under Rule 1.05(a), which ties privilege to the lawyer-client privilege of the Texas and federal evidence rules. A disclosure not involving the substance of a communication does not implicate the privilege and is governed by the provisions for "unprivileged client information."

The Committee concluded that unprivileged client information may be disclosed under Rule 1.05(d)(2)(iv), which permits disclosure necessary to prove the services rendered to a client, or their value, in an action against another person or organization responsible for paying the fee. The Committee read the term "action" to include filing a fee claim with the Workers' Compensation Commission. It added that, absent special circumstances, such disclosure should normally be viewed as impliedly authorized to carry out the representation, so it would also be permitted by Rule 1.05(d)(1).

Currency note

This opinion was issued in 1994, under the Texas Disciplinary Rules of Professional Conduct that took effect January 1, 1990. Texas did not adopt the ABA's Ethics 2000 revisions; its rules have been amended only piecemeal since, including the comprehensive 2021 revisions adopted by Texas Supreme Court order. 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 Treat this page as historical context, not current guidance.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 tell the Workers' Comp Commission what was discussed with a client to get a fee approved?

A: The Committee concluded a lawyer may disclose a general description of the nature of conferences (not the substance) to obtain payment of the fee, under Rule 1.05(d)(2)(iv) and (d)(1).

Q: Is a general description of a client conference privileged?

A: The Committee concluded it is confidential but not privileged, because it does not reveal the substance of attorney-client communications, so it is treated as unprivileged client information under Rule 1.05.

Q: Does a Workers' Comp fee claim count as an "action" for the fee exception?

A: The Committee concluded that the term "action" in Rule 1.05(d)(2)(iv) should be read to include filing a fee claim with the Workers' Compensation Commission.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 1.05 (confidentiality of information; ABA Model Rule 1.6), distinguishing "privileged information" (tied to the lawyer-client privilege under the Texas Rules of Evidence, the Texas Rules of Criminal Evidence, and the Federal Rules of Evidence) from "unprivileged client information," and applying the exceptions in Rule 1.05(d)(1) (implied authorization) and 1.05(d)(2)(iv) (proving services or their value in an action for the fee). It references Texas Workers' Compensation Rule 152.3 on the documentary evidence a fee claim requires.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• Texas Disciplinary Rule 1.05 (incl. 1.05(a), 1.05(d)(1), 1.05(d)(2)(iv))

Statutes:

• Texas Workers' Compensation Rule 152.3 (documentary evidence required to claim an attorney's fee)

See also

• TX Ethics Op. 517: Government Lawyer Telephone Records and Confidentiality
• TX Ethics Op. 559: Appointed Counsel's Detailed Fee Statement and Confidentiality
• TX Ethics Op. 532: Insurer Fee Statements to a Third-Party Auditor

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-506/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_506.pdf

Original opinion text

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

QUESTION PRESENTED

Does an attorney violate Rule 1.05, Confidentiality of Information, of the Texas Disciplinary Rules of Professional Conduct by providing the documentary evidence requested by the Texas Workers' Compensation Commission regarding legal services performed on behalf of his clients?

STATEMENT OF FACTS

To claim a fee before the Texas Workers' Compensation Commission an attorney must submit written evidence to the Commission of his time and expenses. The Commission is authorized to request additional documentary evidence from the attorney in order to fairly evaluate the fee claim. Texas Workers' Compensation Rule 152.3.

Pursuant to this provision, the Commission requests an attorney, when he submits application for attorney's fees, to provide additional documentary evidence in the form of a general description of the nature of each conference with his clients. Such a description might read, for example, "Discussed client's medical treatment" or "Discussed client's weekly income benefits."

DISCUSSION

The information requested by the Commission constitutes "confidential information" that, under Rule 1.05, generally may not be disclosed by an attorney to any third person unless one of the exceptions set forth in Rule 1.05 applies.

In view of the fact that the requested information involves a general description of the nature of conferences between the attorney and client and not a report of the substance of communications between the client and the attorney, the requested information will normally constitute confidential information that is not "privileged information" as that term is defined in Rule 1.05(a): "Privileged information" refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Rule 5.01 of the Federal Rules of Evidence provides for privileges under the principles of the common law, which generally recognizes a privilege with respect to communications between client and lawyer. Rule 5.03(b) of the Texas Rules of Evidence and Rule 5.03(b) of the Texas Rules of Criminal Evidence provide for a privilege with respect to "confidential communications" between client and lawyer. Hence a disclosure that does not involve the disclosure of the substance of a communication does not involve the lawyer-client privilege and is subject to the provisions of Rule 1.05 relating to "unprivileged client information" as that term is defined in Rule 1.05(a).

Unprivileged client information may be disclosed by a lawyer "[w]hen the lawyer has reason to believe it is necessary to do so in order to ... prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client." Rule 1.05(d)(2)(iv). In these circumstances, the Committee believes that the term "action" as used in this provision should be interpreted to include the filing with the Workers' Compensation Commission of a claim for the payment of the attorney's legal fees. In addition, in the absence of special circumstances, such disclosure should normally be viewed as impliedly authorized in order to permit the attorney to carry out the representation. Hence disclosure would also normally be permitted by Rule 1.05(d)(1), which authorizes an attorney to disclose unprivileged information "[w]hen impliedly authorized to do so in order to carry out the representation."

CONCLUSION

Under Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct, an attorney may disclose unprivileged information on the general nature of attorney/client conferences when such disclosure is required by the Texas Workers' Compensation Commission in order for the attorney to obtain payment of the attorney's fee for services to the client.

Tex. Comm. On Professional Ethics, Op. 506 (1994)