Texas Issues Several New Ethics Opinions

The Texas ethical rules have some bearing on federal court litigation in the Fifth Circuit, although they do not control. See In re American Airlines, Inc., 972 F.2d 605 (5th Cir. 1992).  Nonetheless, the Eastern District will consider the Texas rules as part of determining “national standards” of ethics in federal court.  (I practiced in Texas for a long time, and am still licensed there and advise lawyers there, and this “national standards” of ethics thing can be a real trap for unwary lawyers who think they can rely on the Texas rules, alone.)

So, a few brand new opinions from Texas are worth mentioning:

  • Opinion 662:  This is a fun one:  what can you do if a client writes a nasty on-line review of you that, you think, is untrue or unfair?  They use Avvo.com (or Yelp?) and say you’re terrible as a patent prosecutor.  What can you do?  There are handful of opinions and they’re coming out the same way as this one, more or less:  You can’t reveal confidential information and you should be “restrained.”
  • Opinion 644:  Basically concludes that a firm that hires a lawyer who, before he became a lawyer, worked for the adversary’s firm as a paralegal, is not disqualified so long as it screens the lawyer from the work.  (Texas does not generally permit screening of lawyers moving from one private practice job to another, but does permit screening of non-lawyers who migrate, so this opinion addresses the odd hybrid scenario.)
  • Opinion 658:  Basically concludes that a firm may not bill a client more than the actual expenses paid on behalf of the client to third party vendors (like Fed Ex, etc.), unless the client agrees to pay more and if the lawyer has an ownership interest in the  vendor, that must be disclosed and make other disclosures.
  • Opinion 661:  Basically concludes that a lawyer can use the name of some other lawyer in Google ads and the like, so that if a person searches for the other lawyer, this lawyer’s name will appear as a sponsored ad.  (Of course, various caveats about truthful advertising still apply.)  (Trademark issue, anyone? I don’t know.)

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

One thought on “Texas Issues Several New Ethics Opinions

  1. 1


    In opinion 658, a client must consent in writing to a particular fee structure (not critical for my purpose here) which is OK provided:

    “(2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction;”

    Presumably, said independent counsel will use an engagement letter which is a legal document (a contract) necessitating legal advice from a second independent counsel, in turn, using a second engagement letter which leads to:

    Great fleas have little fleas upon their backs to bite ’em,
    And little fleas have lesser fleas, and so ad infinitum.

    Does anyone know how this ends?

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