Can a Texas lawyer use public-record information learned while representing a former client against that client, for example to collect unpaid fees?
Texas Ethics Opinion 595: Using a Former Client's Public-Record Information
Short answer: Per the Committee, a lawyer generally may not use public-record information about a former client, acquired during the representation, to the former client's disadvantage unless it has become generally known or an exception applies; but Rule 1.05(c)(5) permits use to the extent reasonably necessary to collect unpaid fees in a controversy with the former client.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Texas Disciplinary Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion addresses a lawyer who previously represented a client on various matters, is now owed unpaid fees, and plans to pursue collection. During the representation the lawyer learned the client had been shown to commit fraud and other offenses in separate litigation the lawyer did not handle. All of that information is in the public record of that litigation.
The Committee concludes the information is "confidential information" under Rule 1.05(a), specifically "unprivileged client information," because the lawyer acquired it during the representation. Under Rule 1.05(b)(3), a lawyer may not knowingly use a former client's confidential information to the former client's disadvantage after the representation ends, unless the former client consents or the information "has become generally known." The Committee draws a line between public-record and generally-known: a matter can be of public record (in a court file) without any general public awareness, while "generally known" means actually known to some members of the general public, not merely available to anyone who looks. Whether information is generally known is a question of fact.
Even if the information is not generally known, an exception in Rule 1.05(c) through (f) may permit use. Because there is a fee controversy here, Rule 1.05(c)(5) may apply: a lawyer may reveal confidential information to the extent reasonably necessary to enforce a claim or establish a defense in a controversy between the lawyer and the client. The Committee cites Comment 15 to Rule 1.05, which recognizes a lawyer's need to prove services to collect a fee while keeping disclosure as protective of the client as possible. So the lawyer may use the information only to the extent reasonably necessary to enforce the fee claim.
In practice
Under this opinion, and under the Texas rules as they stood at the time, a lawyer cannot freely use damaging public-record facts about a former client just because they sit in a court file. The Committee treats such facts as confidential under Rule 1.05 unless they are generally known, which is a separate, fact-bound question. Where the lawyer and former client are in a fee dispute, Rule 1.05(c)(5) allows use limited to what is reasonably necessary to enforce the claim, and Comment 15 directs that disclosure be as protective of the client as possible.
Common questions
Q: My former client owes me fees and there's damaging info about them in a public court file. Can I use it?
A: Only to the extent reasonably necessary to enforce your fee claim. Per Opinion 595, the information is confidential under Rule 1.05, but Rule 1.05(c)(5) permits limited use in a fee controversy.
Q: Isn't public-record information automatically usable because it's public?
A: No. The Committee distinguishes "public record" from "generally known." Information can be in a court file with no general public awareness; only genuinely generally-known information falls outside Rule 1.05(b)(3), and that is a question of fact.
Q: How much of the information may I use?
A: Only what is reasonably necessary to enforce the claim. The Committee cites Comment 15 to Rule 1.05, which says disclosure should be as protective of the client's interests as possible.
Background and rules framework
The opinion interprets Texas Disciplinary Rule 1.05 (confidentiality of information), including the Rule 1.05(a) definition of confidential information, the Rule 1.05(b)(3) prohibition on using a former client's information to that client's disadvantage, and the Rule 1.05(c)(5) exception for a controversy between lawyer and client. Rule 1.05 corresponds to ABA Model Rule 1.6 (confidentiality), and the former-client dimension corresponds to ABA Model Rule 1.9(c).
Citations and references
Rules of Professional Conduct:
- MR 1.6 (confidentiality of information)
- MR 1.9 (duties to former clients, including 1.9(c) on using information)
- Texas Disciplinary Rule 1.05(a), 1.05(b)(3)
- Texas Disciplinary Rule 1.05(c)(5), and Comment 15
See also
- TX Ethics Op. 603: Revealing a Client's Fiduciary Breach to Creditors
- TX Ethics Op. 607: Sharing Limited Conflicts Information When Changing Firms
Source
- Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-595/
- Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_595.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
QUESTION PRESENTED
Under the Texas Disciplinary Rules of Professional Conduct, may a lawyer use, for the lawyer’s benefit, information in the public record about a former client that the lawyer acquired during the course of representing the former client?
STATEMENT OF FACTS
A lawyer previously represented a client on various matters. The lawyer’s fees billed to the client remain unpaid and the lawyer intends to pursue collection efforts. During the course of the lawyer’s representation of the client, the lawyer learned that the client was shown to have committed fraud and other offenses in litigation in which the client was a party but for which the lawyer did not represent the client. All of the information known to the lawyer concerning the client’s fraud and other offenses is in the public record relating to the litigation.
DISCUSSION
Rule 1.05(b) of the Texas Disciplinary of Rules of Professional Conduct provides that, subject to the exceptions specified in paragraphs (c) through (f) of Rule 1.05, a lawyer is prohibited from knowingly using a former client’s confidential information “to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.” Rule 1.05(b)(3). The term “confidential information” is defined in Rule 1.05(a) as follows:
“‘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 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 501 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 the representation of the client.”
In the factual situation considered in this opinion, the information of public record about the former client, which the lawyer acquired while representing the client, is “unprivileged client information” as defined in Rule 1.05(a). Thus, if no exception applies and the former client does not consent, use of the information to the former client’s disadvantage is prohibited by Rule 1.05(b)(3) unless “the confidential information has become generally known.” Information that is a matter of public record may not be information that is “generally known.” A matter may be of public record simply by being included in a government record, such as a document filed with a court clerk, whether or not there is any general public awareness of the matter. Information that “has become generally known” is information that is actually known to some members of the general public and is not merely available to be known if members of the general public choose to look where the information is to be found. Whether information is “generally known” within the meaning of Rule 1.05(b)(3) is a question of fact.
If the information about the former client has not become generally known, a lawyer in a controversy with his former client may nonetheless be allowed to reveal the information under one of the exceptions stated in paragraphs (c) through (f) of Rule 1.05. Since the factual situation considered in this opinion includes the fact that there is a controversy between the lawyer and the former client concerning the payment of legal fees, the exception stated in Rule 1.05(c)(5) may apply. Rule 1.05(c)(5) permits a lawyer to reveal confidential information “[t]o the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.” Comment 15 to Rule 1.05 explains that a lawyer entitled to a fee “necessarily must be permitted to prove the services rendered in an action to collect it, and this necessity is recognized by sub-paragraphs (c)(5) and (d)(2)(iv). . . . . Any disclosure by the lawyer, however, should be as protective of the client’s interests as possible.” Thus, although the information about the former client is “confidential information” within the meaning of Rule 1.05(a) and may not be within the exception stated in Rule 1.05(b)(3) for information that is “generally known,” the lawyer may be permitted under Rule 1.05(c)(5) to use that information to the extent, but only to the extent, such use is reasonably necessary to enforce the lawyer’s claim for unpaid legal fees.
CONCLUSION
Under the Texas Disciplinary Rules of Professional Conduct a lawyer is generally prohibited from using to the disadvantage of a former client information of public record concerning the former client that was acquired by the lawyer during the representation and that is not generally known to the public. However, if there exists a controversy between the former client and the lawyer regarding unpaid fees or other matters, the lawyer may use such information to the extent that such use is reasonably necessary to enforce a claim or establish a defense for the lawyer in the controversy with the former client.
Tex. Comm. On Professional Ethics, Op. 595 (2010)