Are a government lawyer's telephone records confidential under Rule 1.05, or must they be released under the Texas Open Records Act?

Plain-English summary

A governmental entity subject to the Texas Open Records Act received a request for the telephone records of its attorney. The question was whether those records are "confidential information" subject to the disclosure limits of DR 1.05. The Committee began from settled points: attorneys for governmental entities are subject to the Disciplinary Rules, the client is the entity, and Comment 5 to DR 1.05 confirms the confidentiality requirement applies to government lawyers.

The Committee concluded that an attorney's telephone records relating to work for a client are normally confidential information under DR 1.05(a), which covers both privileged information and unprivileged client information. Without fixing the precise line between the two, it reasoned that records of telephone calls on client matters, when not privileged, are information acquired by the lawyer during or by reason of the representation, and so are unprivileged client information. This includes not only the contents of conversations but also non-public details such as the numbers called and the times of calls.

Under DR 1.05(b), the attorney may not knowingly disclose such confidential information except as permitted or required by DR 1.05 or other law. The Committee noted that the only exception the question might implicate is DR 1.05(c)(4), which permits disclosure when the lawyer reasonably believes it necessary to comply with a court order, the Disciplinary Rules, or other law, an exception echoed in Comment 22. It then drew the line on its own authority: whether the Texas Open Records Act or other legal authority overrides DR 1.05 is a question of law beyond the Committee's jurisdiction, on which it expressed no opinion.

Currency note

This opinion was issued in 1996, 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 March 1, 2005 amendment to the fee rule, Rule 1.04, and 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 Treat this page as historical context, not current guidance.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: Are a government lawyer's phone records confidential under the ethics rules?

A: The Committee concluded that telephone records relating to client work are normally confidential information under DR 1.05(a), as unprivileged client information acquired during or by reason of the representation, and DR 1.05(b) bars knowing disclosure unless an exception applies.

Q: Does confidentiality cover just the call content, or also the numbers and times?

A: The opinion concluded it extends beyond the contents of conversations to other non-public information about the lawyer's legal work, including the telephone numbers called by the attorney and the times of the calls.

Q: Does the Open Records Act force release of those records anyway?

A: The Committee did not decide. It held that whether the Texas Open Records Act or other law overrides DR 1.05 is a question of law beyond its jurisdiction, and expressed no opinion on it; it noted DR 1.05(c)(4) permits disclosure necessary to comply with a court order, the rules, or other law.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 1.05 (confidentiality of information; ABA Model Rule 1.6), including the DR 1.05(a) definition of confidential information (privileged and unprivileged client information), the DR 1.05(b) disclosure bar, the DR 1.05(c)(4) exception for compliance with a court order, the rules, or other law, and Comments 5 and 22. It treats the governmental entity as the lawyer's client.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• Texas Disciplinary Rule 1.05 (incl. 1.05(a), (b), (c)(4)) and Comments 5 and 22

Statutes (referenced):

• Texas Open Records Act, Tex. Gov't Code Section 552.001 et seq.

See also

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

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-517/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_517.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative. The source text encoded a section symbol with an unreadable character; it has been restored.

QUESTION PRESENTED

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 Section 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?

DISCUSSION

Attorneys for governmental entities in Texas are subject to the Texas Disciplinary Rules of Professional Conduct (Disciplinary Rules). See Comment 2 to DR 1.10 and DR 1.12 and Comment 9 thereto (all citations are to the rules and comments of the Disciplinary Rules). In the case of an attorney for a governmental entity, the client of the attorney is the entity.

An attorney's telephone records relating to work on behalf of a client will normally be "confidential information" within the meaning of DR 1.05(a), which provides as follows:

(a) "Confidential information" includes both "privileged information" and "unprivileged client information." "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. "Unprivileged client information" means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of representation of the client.

Comment 5 to DR 1.05 specifically recognizes that "[t]he requirement of confidentiality applies to government lawyers. . . ."

For purposes of this opinion, it is unnecessary to determine the precise boundaries under this rule between privileged information and unprivileged client information. Records of telephone calls with respect to client matters will, when not privileged, be other information "acquired by the lawyer during the course of or by reason of the representation of the client" and hence will be unprivileged client information. This conclusion applies not only to notes and records of the contents of telephone conversations but also to other nonpublic information relating to the attorney's legal work such as telephone numbers called by the attorney and the times of telephone calls.

An attorney subject to the Disciplinary Rules is required by DR 1.05(b) to not knowingly disclose confidential information relating to a client except as otherwise permitted or required by DR 1.05 or other applicable law. The question presented does not specify facts that might implicate the exceptions specified in DR 1.05 other than possibly the exception set forth in DR 1.05(c)(4). This provision permits a lawyer to reveal confidential information. "[w]hen the lawyer has reason to believe it is necessary to do so in order to comply with a court order, Texas Disciplinary Rules of Professional Conduct, or other law." This exception is also noted in Comment 22 to DR 1.05, which recognizes, "a lawyer may be obligated by other provisions of statutes or other law to give information about a client."

The question of whether the Texas Open Records Act or some other legal authority outside the Disciplinary Rules overrides the requirements of DR 1.05 is a question of law beyond the jurisdiction of this committee and accordingly the committee expresses no opinion on such question.

CONCLUSION

DR 1.05 requires that an attorney for a governmental entity subject to the Texas Open Records Act not disclose telephone records relating to representation of the governmental entity unless one of the specified exceptions applies to permit such disclosure. No opinion is expressed as to whether the Texas Open Records Act or other provision or rule of law requires disclosure that would otherwise be prohibited by DR 1.05.

Tex. Comm. On Professional Ethics, Op. 517 (1996)