Texas Disciplinary Rules of Professional Conduct

Kay Redburn

An important clue to anyone looking for the Texas Disciplinary Rules of Professional Conduct ("Rules"), is to look in the State Bar Rules, Article 10, Section 9, which can be found in the Texas Rules of Court. As important as they are, it seems that they are almost hidden in the State Bar Rules table of contents. Following is a summary of some of the rules most applicable to legal assistants. Legal assistants who are members of the Legal Assistants Division of the State Bar of Texas must adhere to the Canons of Ethics to maintain membership and avoid disciplinary proceedings. Legal assistants must heed the Texas Disciplinary Rules of Professional Conduct, or the attorneys for whom they work could face grievance and/or disciplinary actions.

Caveat: This article often paraphrases the Rules cited herein; always refer to the complete text of the Texas Disciplinary Rules of Professional Conduct when faced with an ethical dilemma.

The majority of this article was taken from an article entitled "An Overview of the Texas Disciplinary Rules of Professional Conduct", written by Mike McCurley, to whom I give credit and my sincerest thanks for allowing me to use this portion of his article.

This article will provide an overview of only one section of the Rules and their applicability to the legal assistant profession. Before discussing the individual Rules, one must first understand the purpose and scope of the Texas Disciplinary Rules of Professional Conduct. The Preamble to the Rules states that they are "rules of reason" and "define proper conduct for purposes of professional discipline." (emphasis added) The preamble also states the Rules are not for the following purposes:

• …They Do Not exhaust the moral and ethical considerations that should guide a lawyer.
• …They Do Not attempt to prescribe either disciplinary procedures or penalties for violation of a rule.
• …They Do Not undertake to define standards of civil liability of lawyers for professional conduct.
• …Violation of a rule does not give rise to a private cause of action nor does it create any presumption that a legal duty to a client has been breached.
• …They Are Not designed to be standards for procedural decisions.
• …They Are Not intended to govern or affect judicial applications of either the attorney-client or work product privilege.

The Rules are divided into eight major categories:

1. Client-Lawyer Relationship,
2. Counselor,
3. Advocate,
4. Non-Client Relationships,
5. Law Firms and Associations,
6. Public Service,
7. Information About Legal Services, and
8. Maintaining the Integrity of the Profession.

This Article devotes a section only to chapter 5. It would be a good use of your time to read the TDRPC in their entirety. "Comment" refers to the comments set out in the full text of the TDRPC, and are not reproduced in this article.

Law Firms and Associations

This section addresses issues that arise related to law firms and associations.

1. • Rule 5.01: Responsibilities of a Partner or Supervisory Lawyer
   • A lawyer is not vicariously liable for the acts of another lawyer, but is only exposed to discipline for his or her own knowing actions or failures to act. Comment 5. The Rule subjects a lawyer to discipline because of another lawyer’s violation if:
     1. The lawyer is a partner or supervising lawyer and orders, encourages, or knowingly permits the conduct involved; or
     2. The lawyer is a partner in a law firm in which the other lawyer practices, is the general counsel of a government agency’s legal department in which the other lawyer is employed, or has direct supervisory authority over the other lawyer, and with knowledge of the other lawyer’s violation of these Rules, knowingly fails to take reasonable remedial action to avoid to mitigate the consequences of the other lawyer’s violation. Rule 5.01.

     Whether a lawyer has "direct supervisory authority over the other lawyer" in a particular circumstance is a question of fact. Comment 3. In some instances, a senior associate may be a supervising attorney. Id.

     A partner or other authoritative lawyer as defined by the Rule is required to take reasonable remedial action to avoid or to mitigate the consequences of the other lawyer’s known violation. Comment 4. The appropriate remedial action is dependent upon the circumstances. Id.

     • Rule 5.02: Responsibilities of a Supervised Lawyer
     • When a lawyer acts under the supervision of another person, he or she does not violate these Rules if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional conduct. Rule 5.02. This exception is a narrow one.

       The fundamental concept is that every lawyer is a trained, mature, licensed professional who is sworn to uphold ethical standards and who is responsible for his or her own conduct. Comment 1. This special defense recognizes that the inexperienced lawyer working under the direction or supervision of an employer or senior attorney is not in a favorable position to disagree with reasonable decisions made by the experienced lawyer. Comment 4. Often, the only choices available to the supervised lawyer would be to accept the decision made by the senior lawyer or to resign or to otherwise lose the employment. Id. This Rule is not to be construed as a defense to a supervised lawyer who participates in clearly wrongful conduct. Comment 5.

       • Rule 5.03: Responsibilities Regarding Nonlawyer Assistance
       • This Rule governs secretaries, investigators, law students, interns and paraprofessionals employed by lawyers. Comment 1. The lawyer who has direct supervisory authority over a nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer. Rule 5.03(a).

         The lawyer will be subject to discipline for the conduct of a nonlawyer who would be in violation of these Rules if engaged by the lawyer if:

         a. The lawyer orders, encourages, or permits the conduct involved; or
         b. The lawyer:

         1. Is a partner in the law firm in which the person is employed, retained by, or associated with; or
         2. Is the general counsel of the government agency’s legal department in which the person is employed, retained by or associated with; or
         3. Has direct supervisory authority over such persons and

         c. With knowledge of such misconduct by the nonlawyer knowingly fails to take reasonable or remedial action to avoid or mitigate the consequences of that person’s misconduct. Rule 5.03(b).

         A law firm is not disqualified from representing a client where a legal assistant or secretary has taken employment of a party adverse to a client of the legal assistant’s former employer, if the supervising lawyer of the legal assistant or secretary ensures the nonlawyer’s conduct is compatible with the professional obligations of a lawyer. Ethics Committee Opinion 472 (June, 1991).

         • Rule 5.04: Professional Independence of a Lawyer
         • A lawyer or a law firm is prohibited from sharing or promising to share legal fees with a nonlawyer except as follows:

           a. An agreement by a lawyer with the lawyer’s firm, partner, or associate, or a lawful court order may provide for the payment of money, over a reasonable period of time, to the lawyer’s estate for the benefit of the lawyer’s heirs or personal representatives, beneficiaries, or former spouse, after the lawyer’s death or as otherwise provided by law or court order; b. A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that portion of the total compensation which fairly represents the services rendered by the deceased lawyer; and c. A lawyer or law firm may include non-lawyer employees in retirement plans, even though the plan is based in whole or in part on a profit sharing arrangement. Rule 5.04(a).

           The reasons for these limitations are to prevent solicitation by lay persons of clients for lawyers and to avoid encouraging or assisting nonlawyers in the practice of law. Comment 1. Rule 5.04(a) does not necessarily mandate that employees be paid only on the basis of a fixed salary. Comment 3. The payment of an annual or other bonus does not constitute the sharing of legal fees if the bonus is neither based on a percentage of the law firm’s profits or on a percentage of particular legal fees, nor is given as a reward for conduct forbidden to lawyers. Id.

           A lawyer is prohibited from forming a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law. Rule 5.04(b).

           A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services. Rule 5.04(c). This situation arises frequently when a third party is paying the legal fees for another. The lawyer should always exercise his professional judgment solely on behalf of the client. Comment 4.

           The lawyer is prohibited from forming a professional corporation or association authorized to practice law for profit under the following circumstances:

           a. A nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
           b. A nonlawyer is a corporate director or officer thereof; or
           c. A nonlawyer has the right to direct or control the professional judgment of a lawyer. Rule 5.04(d).

           • Rule 5.05: Unauthorized Practice of Law
           • A lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction. Rule 5.05(1). A lawyer is further prohibited from assisting a person who is not a member of the Bar in the performance of activity which constitutes the unauthorized practice of law. Rule 5.05(2).

             Limiting the practice of law to members of the Bar protects the public against rendition of legal services by unqualified persons. Comment 2. The lawyer may, however, counsel nonlawyers who wish to proceed pro se, since a nonlawyer who represents himself or herself is not engaged in the unauthorized practice of law. Comment 4.

             Rule 5.05 does not prohibit a lawyer form employing the services of paraprofessionals and delegating functions to them. Id. The lawyer must, however, supervise the delegated work and retain responsibility for the work. Id.

             • Rule 5.08: Prohibited Discriminatory Activities
             • New Rule 5.08 provides that lawyers shall not "manifest, by words or conduct" bias or prejudice based on race, sex, color, national origin, religion, disability, age or sexual orientation toward any person involved in a court proceeding during such proceeding. This does NOT apply, however, to a lawyer’s decision whether to represent a particular person, or to the process of jury selection, or communications protected as "confidential information" under these Rules or to appropriate and necessary advocacy.

               Obviously, a legal assistant must conduct himself/herself as would the attorney, i.e., appropriate behavior in Court that does not violate Rule 5.08 and subject the attorney to disciplinary procedures.

In conclusion, even though the attorney bears the ultimate responsibility for adherence to these rules, it is incumbent upon legal assistants to know what the consequences of their actions could be, for the supervising attorney, the client and the legal assistant. The lawyer cannot use the excuse that he was not aware of the actions of the non-lawyer employee. Good faith is not a defense to attorney malpractice. Cosgrove v. Grimes, 774 S.W.2d 662 (Tex. 1989). To maintain the integrity of the legal assistant profession, each one of us must be familiar with the Texas Disciplinary Rules and apply them to our conduct, as well.

Kay Redburn is a legal assistant with the Dallas firm of McCurley, Webb, Kinser, McCurley & Nelson. She is currently the Chair of the Professional Ethics Committee of the Legal Assistants Division.