Texas Professional Ethics Committee Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the Texas Professional Ethics Committee, with full citations and source links on every page.
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Before filing a matter with a state agency that will decide it, can a Texas lawyer contact the agency to influence the outcome?
Only in limited ways. The Committee concludes Rule 3.05 bars ex parte communications with the agency's decision maker meant to influence a matter, even before filing, once an agency decision is reason…
Can a Texas lawyer put a binding arbitration clause covering fee disputes and malpractice claims in an engagement agreement?
Yes, if the terms are not unfair to a typical client willing to arbitrate, the client has enough information to make an informed decision, and the clause does not limit the lawyer's malpractice liabil…
In a small community with few lawyers, can a Texas lawyer advise the client to hire all of them so the opposing party can't find local counsel?
It depends on purpose. The Committee concludes that counseling a client to retain all local lawyers to deprive the opposing party of representation violates Rule 4.04(a) if the conduct has no substant…
Can a Texas lawyer keep representing a client when a former client's conduct turns out to be material to the case?
Yes, if the new matter is not adverse to the former client, or if it is adverse but does not question the lawyer's prior work, is not the same or substantially related, and carries no reasonable proba…
Can a Texas lawyer agree to mediate a divorce between two unrepresented spouses and also draft the divorce decree and documents if they settle?
No. The Committee concludes a lawyer-mediator may not agree up front to both mediate and provide legal services, which violates Rule 1.11(b); and because a divorce is litigation, the lawyer cannot rep…
Can a Texas lawyer have a client agree in advance that the lawyer may charge the client's credit card for invoices unpaid after 30 days?
Yes. The Committee concludes a lawyer may charge a client's credit card for earned fees if the client consents and the client's right to challenge a disputed bill is preserved; but a disputed amount c…
Can a Texas lawyer's engagement agreement require the client to pay the lawyer's defense costs if the lawyer gets joined as a defendant in the client's case?
Yes, with conditions. The Committee concludes such a clause is permissible if it does not prospectively limit the lawyer's malpractice liability under Rule 1.08(g) and if the defense-cost obligation p…
If a Texas lawyer agreed to binding arbitration of a fee dispute and loses, is refusing to comply with the award a disciplinary violation?
It can be. The Committee concludes that refusing to obey the award violates Rule 1.14 or 1.15(d) if the lawyer keeps client funds contrary to the award, and violates Rule 8.04(a)(3) if the lawyer ente…
Can a public defender cure a conflict between two clients by handing one off to another lawyer in the same PD office, and may the lawyer keep representing the other client?
No to the handoff, yes to continuing. The Committee concludes a public defender's office is one 'law firm,' so under Rule 1.06(f) the conflict is imputed to every lawyer in it; but the lawyer may keep…
Can a Texas firm sue a city it used to represent on behalf of another city, and does screening the lawyers who handled the old matter help?
Yes if the new matter is unrelated, does not question the firm's prior work, and creates no reasonable probability of a Rule 1.05 breach; but screening does not help, because under Rule 1.09(b) one di…
Can a law firm bill its client a higher hourly rate for a contract or outside lawyer's work than the firm actually pays that lawyer?
It depends on whether the lawyer is 'in' the firm. The Committee concludes a firm may mark up the work of an 'other firm lawyer' (such as of counsel or a contract lawyer who is in the firm) without di…
Can a lawyer in a contingent fee case let a non-lawyer lending company fund litigation expenses in exchange for a funding fee that is a percentage of the recovery?
No. The Committee concludes the arrangement is fee sharing with a non-lawyer barred by Rule 5.04(a), because tying the lending company's funding fee to a percentage of the recovery lets the non-lawyer…
Can a Texas lawyer secretly record a phone call with a client or a third party without telling them the call is being recorded?
Generally yes. The Committee concludes the rules do not bar a lawyer from making an undisclosed recording of a call the lawyer is on, provided recordings involving a client serve a legitimate purpose,…
After leaving a Texas regulatory agency, can a lawyer represent a client before that agency on a matter that started while the lawyer worked there but that the lawyer never worked on?
Yes. The Committee concludes Rule 1.10(a) bars a former agency lawyer only from matters in which the lawyer participated personally and substantially as a public employee; mere employment when a matte…
Can a Texas lawyer pay a fee to join a for-profit website that gathers potential clients' information and forwards it to participating lawyers?
Yes, but only if the service operates as advertising rather than a referral service. The Committee allows participation if lawyer selection is wholly automated with no discretion, the service makes no…
Can a lawyer hand documents containing privileged client information to an outside copy service or other contractor without getting the client's express consent first?
Yes. The Committee concludes that, unless the client has instructed otherwise, giving privileged materials to a contractor hired to help with the representation (such as a copy service) is not 'reveal…
Can a prosecutor make a plea deal waive appeals for prosecutorial misconduct and ineffective assistance, and can defense counsel advise on and sign it?
The Committee concludes the rules do not bar a prosecutor from including such a waiver when the defendant is represented, but the waiver does not excuse the prosecutor from Rule 3.09; defense counsel …
Does a Texas lawyer have to give a former client the lawyer's own notes from the case file, including work product?
Generally yes. The Committee concludes a lawyer must, on request, turn over to a former client the lawyer's notes from the file, including work product, except when the lawyer may withhold them under …
Can a lawyer who owns a law-related consulting business represent a client in a matter against someone who is a customer of that business?
Yes, but only if the lawyer works through Rule 1.06(b)(2): the lawyer's interest in the business and its customers normally creates a conflict, so the representation is allowed only where it is not ad…
Can a lawyer pay a suspended or disbarred lawyer a share of a contingent fee under a referral or fee-sharing agreement made before the discipline?
Yes, but only if the fee-sharing agreement existed before the suspension or disbarment and the suspended or disbarred lawyer fully performed all of that lawyer's work in the matter before the discipli…
Can a city attorney advise a city ethics board investigating an ethics complaint filed against a majority of the city council?
No. The Committee concludes the city attorney's representation of the ethics board against most of the city council reasonably appears to be adversely limited by his own employment interests under Rul…
If a lawyer is appointed by a court as a receiver, can the lawyer pay part of the receiver fee to the lawyers for the parties?
No. The Committee concludes a lawyer/receiver may not pay any part of the receiver fee to the parties' lawyers, because accepting it would violate Rule 1.08(e) for those lawyers and would make the rec…
If a client files grievances and pro se motions against me but not about the issue still on appeal, do I have to keep representing the client on that appeal?
Generally yes. The Committee concludes the lawyer must continue the appeal on the remaining matter unless permitted to withdraw under Rule 1.15(b) and the court does not order continued representation…
Can a lawyer represent a school district buying land from someone who sits on the board of a bank the lawyer's firm represents in unrelated matters?
Yes. The Committee concludes there is no prohibited conflict: under Rule 1.12(a) the firm represents the bank as an entity, not its directors, so representing the school district against a bank direct…
When I leave my firm, can I take a client I worked on there and switch the matter to a contingent fee, using what I learned while at the firm?
Yes, with safeguards. The Committee concludes a departing lawyer may solicit and accept a firm client on contingency for a matter the lawyer handled, but must comply with Rules 1.03, 1.04, 1.05, 1.06,…
Can a Texas lawyer join a federal GSA schedule program that refers federal agencies to listed lawyers if the lawyer pays the program one percent of fees earned?
Yes, for services to federal agencies. The Committee concludes the one-percent payment is a negotiated fee discount with a single client entity (the Executive Branch), not fee sharing under Rule 5.04(…
Can a Texas lawyer pay a fee to be listed on a private for-profit website that collects potential clients' information and forwards it to listed lawyers?
No. The Committee concludes the service solicits or refers prospective clients rather than providing advertising, so paying its fee violates Rule 7.03(b)'s bar on paying a non-lawyer for soliciting or…
Can my law firm lease its lawyers and staff from an employee leasing company that also leases personnel to other firms whose clients may be adverse?
Yes, with conditions. The Committee concludes a firm may use an employee leasing company for limited payroll and benefits services so long as the firm keeps exclusive control over hiring and terminati…
As court-appointed defense counsel, can I give the court a detailed fee statement describing the records I reviewed, my research topics, and whom I contacted, to get paid?
Only with the defendant's informed consent. The Committee concludes the detailed statement reveals confidential information under Rule 1.05, so an appointed lawyer may submit a general description of …
Can I borrow money for case expenses from a finance company and agree to pay the lender a percentage of my contingency fee in the case?
No. The Committee concludes that agreeing to pay a finance company or other lender a percentage of the lawyer's contingency fee is sharing legal fees with a non-lawyer in violation of Rule 5.04(a), an…
Can I keep representing a client who disagreed with my settlement recommendation and then consulted a malpractice lawyer about my handling of the case?
Only conditionally. The Committee concludes that once a client has consulted a malpractice lawyer about the representation, the lawyer's personal interest in a possible malpractice claim creates a Rul…
Can a law firm share confidential client information with a collection agency's employees if they sign on as 'borrowed employees' of the firm to collect the firm's past-due fees?
No, not without each affected client's prior informed consent. The Committee concludes that labeling collection-agency employees 'borrowed employees' does not make them firm employees under Rule 1.05(…
Can a Texas lawyer co-own a chiropractor's practice, refer injury clients to that chiropractor, and share in the profits, including profits from the referred clients?
No. The Committee concludes the arrangement violates Rule 2.01 because it would prevent the lawyer from exercising independent professional judgment and giving candid advice about the client's medical…
If I'm a Texas lawyer serving as a state senator or representative, can I represent private clients in courts within my legislative district?
Yes. The Committee concludes that holding state legislative office does not by itself bar a lawyer from representing clients in city, county, and state courts in Texas, including courts in the lawyer'…
Can I call an expert witness whose employer has a contingent fee interest in the outcome of my client's case?
No. The Committee concludes Rule 3.04(b) bars a lawyer from using an expert witness employed by a business entity that holds a contingent fee interest in the case, because the rule prohibits compensat…
As insurance defense counsel, can I email my fee statements to the insurer's third-party auditor and pay the auditor a percentage of my fee?
Not without the insured's informed consent, and never the percentage payment. The Committee concludes the fee statement is confidential under Rule 1.05, so disclosing it to the auditor requires the in…
If I worked as a lawyer for a city, can the city's ethics code bar me from representing others before the city for two years, even on unrelated matters?
Yes. The Committee concludes the Disciplinary Rules do not prohibit enforcing a city ethics code's two-year bar on a former city lawyer representing others before the city: Rule 1.10 has no conflictin…
Can a Texas lawyer with a Juris Doctor degree use the title 'Dr.' or 'J.D.' in social settings, on letterhead, and in advertising?
Yes, unless misleading. The Committee concludes the rules do not bar a lawyer with a J.D. or Doctor of Jurisprudence degree from using 'Dr.,' 'Doctor,' or 'J.D.' in social and professional communicati…
In a workers' comp third-party case, can my contingent fee be based on the gross recovery even though part of it must be repaid to the comp carrier?
No. The Committee concludes a contingent fee computed on the gross third-party recovery is unconscionable under Rule 1.04(a), because the carrier is entitled to the first money out by subrogation and …
Can a Texas law firm let a non-profit it donates to list the firm as a financial sponsor on the non-profit's website?
Yes. The Committee concludes a sponsor listing is permissible advertising, not a prohibited referral payment, where the firm pays a fixed amount unrelated to any referrals, every equal-contributing sp…
Can a Texas law firm let a group of doctors pay for its TV advertising in exchange for the expectation, but not the obligation, that the firm will refer clients to that group?
No. The Committee concludes the arrangement creates an unacceptable conflict: the firm's financial incentive to refer clients to the funding medical group means it cannot reasonably believe its repres…
Can a Texas lawyer and an associate sign an employment agreement covering who keeps a contingent-fee client and how the fee is split when the associate leaves?
Yes, within limits. The Committee concludes such an agreement is permissible and may provide a formula for paying the departed associate a share of a later-collected contingent fee (Rule 1.04(g)), but…
Can a lawyer collecting delinquent taxes for a Texas taxing unit agree to a contingent fee where the unit keeps part of the statutory attorney-fee penalty if a collection goal isn't met?
No. The Committee concludes the arrangement violates Rule 1.04(d), which bars a contingent fee prohibited by other law: letting the taxing unit retain part of the section 33.07 penalty when the lawyer…
If I serve on a city council, can I discuss and vote on a matter involving a client of my former law firm when I never worked on that client's matter?
Yes, with conditions. The Committee concludes a lawyer on a city council may participate and vote on a matter where the former firm represents a client, provided the lawyer did not personally represen…
Can a Texas lawyer who is in-house counsel to a healthcare provider agree to represent the provider's injured patients at low cost in exchange for the provider referring those patients?
No. The Committee concludes the arrangement is prohibited: the low-cost services are a thing of value given for referrals under Rule 7.03(b), the agreement to drop patients who dispute the provider im…
Can I defend criminal cases in the same county where my spouse works as an assistant district attorney?
Only with consent. The Committee concludes a lawyer's representation of criminal defendants in the county where the lawyer's spouse is an assistant DA is adversely limited under Rule 1.06(b)(2); the d…
Can a Texas lawyer agree to defend an insurer's insureds for a fixed fee set by stage of the case?
Yes. The Committee concludes a lawyer may take a fixed fee from a liability insurer for defined stages of defending an insured, but the lawyer must still render the professional representation the rul…
If I serve as a municipal court judge, can I also defend criminal cases where the city's police may be witnesses?
Only with consent. The Committee concludes a municipal court judge may not defend a criminal case where the city's police may be witnesses (or in a matter he adjudicated, or in his own court) unless b…
If I'm a lawyer serving as a county judge, can I represent private clients in the justice, county, and district courts of my own county?
Only with consent. The Committee concludes it is a conflict under Rule 1.06(b)(2) for a county judge, who presides over the commissioners court and is the county's chief budget officer, to represent p…
If I am elected district attorney, can I prosecute someone I previously defended as their criminal defense lawyer?
The Committee concluded a newly elected DA may not prosecute a former client's probation revocation in a case the lawyer defended (regardless of consent), may not prosecute a former client in a new ca…
Can a trade association's general counsel recommend an outside lawyer to members and round up other members for a joint lawsuit against a common supplier?
The Committee concluded that, on these facts, a trade association's general counsel could recommend qualified outside counsel and inform members of joint litigation against a common supplier without v…
Can I take a referral fee from an investment adviser for sending my client to them, paid as a percentage while the client stays invested?
The Committee concluded that a lawyer's receipt of ongoing solicitation fees from an investment adviser, paid while the lawyer's client keeps using the adviser, violates Rule 1.06(b)(2) because the la…
Can I volunteer as the court's 'attorney of the day' if I am paid only when the defendant pleads guilty that day?
The Committee concluded a lawyer may not volunteer for a court 'attorney of the day' program in which the lawyer earns a more-than-nominal flat fee only if the defendant pleads guilty that day, becaus…
If my client's lawyer prepared a defective QDRO and won't fix it after I flag it, do I have to report them to the bar?
The Committee concluded the divorce lawyer must prepare the QDRO competently and correct material defects once flagged (Rule 1.01); the employer's reviewing lawyer must report the failure under Rule 8…
Can I follow my insurance-company client's litigation and billing guidelines when I am defending the insured?
The Committee concluded that defense counsel retained by an insurer may not agree to insurer litigation or billing guidelines that direct or regulate the lawyer's independent professional judgment in …
Can my insurance-company payer require me to send my fee statements to its third-party auditor without my client's consent?
The Committee concluded that a lawyer retained by an insurer to defend an insured may not, without the insured's informed consent, submit fee statements describing the legal services rendered to the i…
Can our corporate legal department charge our subsidiaries market-rate fees, rather than just cost, for in-house legal work?
The Committee concluded a corporation may not charge its subsidiaries market-based fees (anything above its costs) for legal services rendered by its in-house staff, even if the excess is later rebate…
Can I practice law in my county's justice, county, and district courts while serving as an elected county commissioner?
The Committee concluded a lawyer who is an elected county commissioner violates Rule 1.06(b)(2) by representing private clients in the county's justice, statutory county, and district courts, because …
Can my firm use a name like 'Discount Legal Services of Jones and Doe' or 'Jane Doe Trial Lawyers'?
The Committee concluded a lawyer may not practice under a firm name that, beyond the lawyers' names and words showing the firm provides legal services, claims or implies a quality of the firm; names l…
Does my firm have a conflict if we hire a lawyer who married into the family of a mid-level employee of a corporation we are suing?
The Committee concluded that, on these facts, a firm's hiring of a lawyer married to the daughter of a mid-level employee of an opposing corporation created no conflict under Rule 1.06(b)(2), because …
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Legal ethics opinions from the Texas Professional Ethics Committee interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.