Can a Texas lawyer make settling a civil case contingent on the other side signing an affidavit whose content the lawyer's client must approve?
Texas Ethics Opinion 614: Conditioning Settlement on an Affidavit Acceptable to the Client
Short answer: Per the Committee, a lawyer may not condition the settlement of a civil lawsuit on the other party giving an affidavit whose content is acceptable to the lawyer's client, because that arrangement pays compensation (a more favorable settlement) for particular testimony in violation of Rule 3.04(b); a settlement may, however, require an affidavit truthfully addressing a specified subject if no content is dictated or approved.
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 mediation between parties A and B. B, through counsel, offers to settle the litigation on specified terms provided that A executes an affidavit acceptable in form and substance to B. B's lawyer plans to use that affidavit, and possibly A's testimony, at trial in a separate pending lawsuit between B and C.
The Committee applies Rule 3.04(b), which bars a lawyer from paying, offering to pay, or acquiescing in payment of compensation to a witness contingent on the content of the witness's testimony. The Committee reads "compensation" broadly: it covers not only money but other benefits offered for testimony, including a settlement on more favorable terms than would otherwise be available in exchange for agreeing to give specified testimony in another case. Citing its Opinion 553 and Castillo v. State, the Committee notes the line drawn in the plea-bargain context, where a deal contingent on truthful testimony in another prosecution does not violate Rule 3.04(b) if it is not contingent on the content of that testimony.
Applying that rule, the Committee concludes that if B will settle with A only when A executes an affidavit acceptable in content to B, the arrangement is compensation (the more favorable settlement) in exchange for particular testimony, and B's lawyer participating in it would violate Rule 3.04(b). That is true even if the affidavit's contents are entirely truthful. By contrast, the Committee says it is permissible for a settlement to require A to give an affidavit on a specified subject (for example, A's memories of a particular incident) so long as nothing requires what those memories must be and B does not approve the content, and likewise permissible to require A to cooperate by appearing for deposition or trial testimony in another matter with no conditions placed on the testimony.
In practice
Under this opinion, and under the Texas rule as it stood at the time, a lawyer settling a civil case may not make the settlement contingent on the opposing party signing an affidavit whose content the lawyer's client must find acceptable; the Committee treats the more favorable settlement as compensation for the specified testimony, prohibited by Rule 3.04(b) regardless of whether the testimony is truthful. The opinion holds that a settlement may instead require an affidavit that truthfully addresses a specified subject or incident, or require the party's cooperation and availability for deposition or trial testimony in another matter, provided no one dictates the content of the testimony or reserves a right to approve it.
Common questions
Q: Can I settle a civil case on the condition that the other side sign an affidavit my client approves?
A: No. Per Opinion 614, conditioning the settlement on an affidavit whose content must be acceptable to your client is compensation (the better settlement) for particular testimony, which Rule 3.04(b) prohibits.
Q: Does it matter that the affidavit would be truthful?
A: No. The Committee states there would be a violation even if the testimony in the proposed affidavit was entirely truthful, because the prohibition turns on paying for content, not on falsity.
Q: Is there any way to require an affidavit as part of a settlement?
A: Yes. The opinion says a settlement may require an affidavit on a specified subject (for example, the party's memories of a specific incident) as long as nothing dictates what those memories must be and the other side does not approve the content; it may also require the party to cooperate by being available for deposition or trial testimony in another matter without conditions on what the testimony will be.
Background and rules framework
The opinion interprets Texas Disciplinary Rule 3.04(b), which provides that a lawyer shall not "falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the witness or the outcome of the case." Rule 3.04 corresponds to ABA Model Rule 3.4 (fairness to opposing party and counsel).
Citations and references
Rules of Professional Conduct:
- MR 3.4 (fairness to opposing party and counsel)
- Texas Disciplinary Rule 3.04(b)
Cases:
- Castillo v. State, 221 S.W.3d 689 (Tex. Crim. App. 2007), Rule 3.04(b) is not violated where a plea bargain is contingent on the defendant testifying truthfully in another prosecution but not on the content of that testimony
Other opinions cited:
- Texas Professional Ethics Committee Opinion 553 (August 2004): a lawyer may not pay or acquiesce in payment of compensation to a witness contingent on the content of the witness's testimony
See also
- TX Ethics Op. 637: Client Waiver of Barratry Remedies and Settlement
- TX Ethics Op. 664: Duty on Receiving an Opposing Party's Confidential Information
- TX Ethics Op. 676: Retaining or Disclosing to an Expert to Disqualify Them
Source
- Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-614/
- Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_614.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
QUESTION PRESENTED
Is a lawyer prohibited from conditioning the settlement of a civil lawsuit upon the receipt from the other party in the lawsuit of an affidavit that is acceptable to the lawyer’s client?
STATEMENT OF FACTS
During mediation of pending litigation between A and B, B through his lawyer offers to settle the litigation on specified terms provided that A agrees to execute an affidavit that is acceptable in form and substance to B. B’s lawyer plans to use A’s affidavit and possibly testimony from A at trial in a separate pending lawsuit between B and C.
DISCUSSION
Rule 3.04 of the Texas Disciplinary of Rules of Professional Conduct provides in pertinent part:
“A lawyer shall not:
. . . .
(b) falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the witness or the outcome of the case. . . . .”
Thus under Rule 3.04(b) a lawyer is not permitted to pay or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’s testimony. See Professional Ethics Committee Opinion 553 (August 2004). This Rule is applicable not only to payments of money but also to other kinds of benefits offered to a witness for testimony. Such benefits would include offering a party in a civil case a settlement on more favorable terms than would otherwise be available in exchange for such party’s agreement to give specified testimony in another case. See also Castillo v. State, 221 S.W.3d 689 (Tex.Crim.App. 2007) (ruling in the case of a plea bargain agreement in a criminal proceeding that Rule 3.04(b) is not violated if a criminal defendant’s plea bargain is contingent on the defendant’s giving truthful testimony in another prosecution but is not contingent on the content of the testimony to be given).
In the situation here addressed, if B offers to enter into a particular settlement with A only if A executes an affidavit that is acceptable in content to B, the arrangement constitutes the payment of compensation – in the form of a presumably more favorable settlement to A – in exchange for particular testimony from A to be contained in the affidavit. Participation by B’s lawyer in such an arrangement would thus constitute a violation of Rule 3.04(b). There would be a violation even if the testimony contained in the proposed affidavit was entirely truthful. However, it would be permissible under Rule 3.04(b) for the settlement agreement to require simply that A give an affidavit on a specific subject matter without any requirement for approval of the content or specification as to what the specific testimony should be. For example, it would be permissible to require that A give an affidavit on A’s memories regarding a specific incident (e.g., an automobile accident) as a term of the settlement of the lawsuit between A and B, provided that there was no requirement as to what A’s particular memories set out in the affidavit must be and no requirement for approval of the content by B. It would also be permissible under Rule 3.04 (b) for the settlement agreement to contain provisions requiring A to cooperate with B with respect to another pending matter in terms of A making himself available for either deposition or trial testimony or both in the other matter without any conditions being placed on the testimony that A would give.
CONCLUSION
Under the Texas Disciplinary Rules of Professional Conduct, a lawyer is prohibited from conditioning the settlement of a civil lawsuit upon the receipt from the other party of an affidavit providing testimony on a particular subject that is acceptable to the lawyer’s client. However it is permissible to require in an agreement to settle a civil lawsuit that the other party provide as part of the implementation of the settlement an affidavit that addresses truthfully a specified subject or incident but without any requirement concerning the content, or approval for the content, of the affidavit.
Tex. Comm. On Professional Ethics, Op. 614 (2012)