FAMILY LAW AND THE LIMITS OF ZEALOUS ADVOCACY:
SAY YES TO ZEAL, SAY NO TO ZEALOTRY
STEVEN L. LEE and SUSAN BROTMAN
Law Office Of Steven L. Lee, P.C.
1411 West Ave., Suite100
Austin, Texas 78701
State Bar of Texas
41st ANNUAL
ADVANCED FAMILY LAW COURSE
August 3-6, 2015
San Antonio
CHAPTER 6
Steven L. Lee
Law Office of Steven L. Lee, P.C.
1411 West Ave., Suite 100
Austin, Texas 78711
512/215-2355
Steven L. Lee is an honors graduate of the University of North Texas (more humbly known as North Texas State
University in his day) and St. Mary’s School of Law. Mr. Lee has been licensed since 1980 and was first employed as a
lawyer by the State Bar of Texas in that year. Over an eleven year career with the State Bar of Texas, Mr. Lee held many
positions with the Office of the General Counsel, including Acting General Counsel. Upon leaving the State Bar, Mr.
Lee joined Lione & Monroe, P.C., which was thereafter known as Lione, Monroe & Lee, P.C., and later Lione & Lee,
P.C. In 2014, after twenty-three years of operation, Lione & Lee, P.C. commenced winding down and Mr. Lee opened
the Law Office of Steven L. Lee, P.C. In the current firm Mr. Lee continues to practice exclusively in the areas of
attorney grievance, legal ethics, professional responsibility, Bar admissions, and judicial ethics. Services include defense
of attorneys accused of professional misconduct, consultation on matters of legal ethics, representation of judges in
judicial grievances, representation of applicants for admission to the State Bar of Texas, and expert witness engagement.
A frequent speaker at continuing legal education programs, Mr. Lee is a Past President of the Association of Professional
Responsibility Lawyers, a national organization of lawyers interested in the law of lawyering.
Educational Background
St. Mary's University School of Law
San Antonio, Texas,
J.D., May 1980
University of North Texas
Denton, Texas
B.A., magna cum laude, December 1976
Work Experience
Name Shareholder, Law Office of Steven L. Lee, P.C. - - May 2014 to Present
The practice of the Law Office of Steven L. Lee is devoted exclusively to legal ethics and professional responsibility, Bar
admissions, and judicial ethics representation. Mr. Lee provides direct representation in adversarial matters, advice in
matters concerning legal ethics and professional responsibility, and expert witness services.
Name Shareholder, Lione & Lee, P.C. - - 1991 to 2015
Lione & Lee, P.C. was formed in February, 1992 as the successor to Lione, Monroe & Lee, P.C., which was the
successor to Lione & Monroe, P.C., founded in 1985. The firm is a general civil practice with an emphasis on trial
practice. Current docket is almost entirely defense of attorneys accused of professional misconduct, consultation on
matters of legal ethics, representation of applicants for admission to the State Bar of Texas, and representation of judges
accused of judicial misconduct.
In addition to the above practice, also presents speeches at local bar sponsored CLE programs on the defense perspective
of the Texas attorney grievance process. Past President of the Association of Professional Responsibility Lawyers, a
national organization of lawyers who concentrate their practices in legal ethics, attorney discipline, bar admissions,
attorney malpractice, risk management, and legal education.
Attorney, Office of the General Counsel, State Bar of Texas, 1980 to 1991.
Deputy General Counsel/Administration--1989 to 1991. Maintained reduced trial docket. Responsible for
administrative duties related to the Office of General Counsel which included budget preparation, personnel
management, corporate counsel duties, and legal advice to the elected State Bar Officers and Directors, Executive
Director, department heads, and volunteers in the grievance process. Responsible for administrative oversight of over 70
employees in the Austin office and ten regional grievance offices and implementation of the new grievance process.
Served as Acting General Counsel of the State Bar of Texas from late 1989 through early 1990.
Assistant General Counsel (Trial Attorney)--1985-1989. Maintained full docket of attorney discipline cases
statewide. Experience in jury and non-jury trials in state district courts as well as defense of the State Bar of Texas in
miscellaneous lawsuits.
Assistant General Counsel (Corporate Affairs and Training)--1983-1985. Responsible for prosecution of all
compulsory discipline cases and State Bar debt collection; second chair in attorney discipline cases. Assisted the General
Counsel in review of non-litigation matters affecting the State Bar of Texas. Assisted in training of grievance committee
members and attended grievance committee meetings statewide on as-needed basis.
Assistant General Counsel (Appellate Counsel)--1980-1983. Responsible for all appeals of attorney discipline
cases and second chaired some attorney discipline trials. Also handled federal appeals of civil rights and antitrust cases
in the Fifth Circuit and U.S. Supreme Court. Liaison to District 9 Grievance Committee, State Unauthorized Practice of
Law Committee, Professional Ethics Committee, The Real Estate Broker-Lawyer Joint Committee of both the Texas
Real Estate Commission and State Bar of Texas.
In addition to the duties listed above, published numerous articles and a frequent public speaker on behalf of the
State Bar of Texas. Also involved in the formulation of the State Bar's Mass Disaster Response Plan and have written
public service pamphlets on topics such as the grievance process, mass disaster and the Client Security Fund.
Professional Affiliations
Admitted:
State of Texas
Member:
State Bar of Texas
Texas Bar Foundation
Association of Professional Responsibility Lawyers
Texas Center for Legal Ethics and Professionalism
Austin Bar Association
SUSAN BROTMAN
Law Office of Susan Brotman
152 Madison Avenue, 14th Floor
c/o Donovan, LLP
New York, New York 10016
Fax: 212.223.0966
Of Counsel
Law Office of Steven L. Lee, P.C.
1411 West Ave., Suite 100
Austin, Texas 78701
Direct Dial: 646.207.4962
Direct Fax: 512.282.6531
Susan Brotman concentrates her practice in legal ethics, lawyer disciplinary and admissions matters, and civil
litigation involving lawyers and law firms in New York and Texas. Ms. Brotman is Of Counsel to the Law Office of
Steven L. Lee, P.C., in Austin, Texas.
Ms. Brotman began her career in 1981 as Law Secretary to the Honorable Justice Shanley N. Egeth, Judge of the
New York Supreme Court and Administrative Judge of the New York City Civil Court. From 1983 to 1988, Ms.
Brotman was Associate Counsel at the Departmental Disciplinary Committee of the New York State Appellate
Division, First Department, where she investigated and prosecuted attorney professional misconduct. From 1989 to
1998, Ms. Brotman was Of Counsel to Gallop, Dawson, Clayman & Rosenberg and its successor, Clayman &
Rosenberg, a white collar criminal defense firm. Ms. Brotman was a member of Gentile & Benjamin and its
successor, Benjamin Brotman & Associates, P.C., from 1998 to 2006. Thereafter, Ms. Brotman opened her own firm
where she continues to concentrate her practice in professional disciplinary proceedings and the law of lawyering.
Ms. Brotman is a Past President of the Association of Professional Responsibility Lawyers, a former member of the
New York City Bar Association’s Committee on Professional Discipline, Committee on Judicial and Legal Ethics,
Committee on Professional Responsibility and the Lawyer’s Assistance Committee. Ms. Brotman is also former
Chair of the Professional Discipline Committee of the New York County Lawyers’ Association.
EDUCATION
JURIS DOCTOR, New York Law School, 1980
BACHELOR OF ARTS, State University of New York at Albany
MEMBER
NEW YORK STATE BAR
STATE BAR OF TEXAS
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT, NEW YORK
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT, NEW YORK
PROFESSIONAL ATIVITIES
ASSOCIATION OF PROFESSIONAL RESPONSIBILITY LAWYERS
PRESIDENT
2007-2006
NEW YORK CITY BAR ASSOCIATION
Lawyer’s Assistance Program
Committee on Professional Discipline
Committee on Lawyer’s Assistance Program Committee
Committee on Professional and Judicial Ethics
Committee on Professional Responsibility
Committee on Professional Discipline
2005-2008
2005-2007
2005-2008
1998-2001
1995-1998
1992-1995
NEW YORK COUNTY LAWYERS’ ASSOCIATION
CHAIR, Professional Discipline Committee
Professional Ethics Committee
Professional Discipline Committee
1996-1998
1998-1999
1996-1998
CONTINUING LEGAL EDUCATION AND PROFESSIONAL PRESENTATIONS
39th NATIONAL CONFERENCE FOR PROFESSIONAL RESPONSIBILITY
MAY 2013:
CONCURRENT DISCIPLINARY PROCEEDINGS AND MALPRACTICE ACTIONS
GAS & POWER INSTITUTE
SEPT. 2008
CO-AUTHOR, “METADATA, EVOLVING ETHICAL DUTIES”
AMERICAN BAR ASSOCIATION, SECTION OF LABOR & EMPLOYMENT LAW
APRIL/ DEC. 2007
TECHNOLOGY AND ETHICAL ISSUES FOR LAWYERS
NEW YORK CITY BAR
OCT. 2007:
AUG. 2006:
OCT. 2004, JUNE 2005:
ETHICS FOR IN HOUSE COUNSEL: CURRENT TOPICS
WHAT THE NEWLY ADMITTED AND NOT YET ADMITTED SHOULD
KNOW
CHAIR, CURRENT ETHICAL ISSUES FOR CORPORATE AND IN-HOUSE
COUNSEL
ASSOCIATION OF PROFESSIONAL RESPONSIBILITY LAWYERS
FEB. 2011:
PREVENTING AND CURING: HEALTH AND HOSPITAL LAW ETHICS
FEB. 2005:
REINSTATEMENT: AFTER THE BALL AND HOW TO GET BACK TO
THE DANCE
AUG. 2004:
UPDATE ON ETHICS AND CIVIL LIABILITY: HOURLY RATES,
RETAINER AGREEMENTS, AND FIXED AND CONTINGENT FEES
NEW YORK NEW YORK UNIVERSITY SCHOOL OF LAW
FEB. 2007:
BAR APPLICATION ADMISSION INFORMATION PANEL
FEB. 2008:
BAR APPLICATION ADMISSION INFORMATION PANEL
FEB. 2009:
BAR APPLICATION ADMISSION INFORMATION PANEL
JUNE 2000:
INTERVIEW, SETTLEMENT WITH SOME ETHICS THROWN IN
WESTCHESTER BAR ASSOCATION
SEPT. 2003:
ETHICS ISSUES IN LIGITATION
NEW YORK UNIVERSITY SCHOOL OF CONTINUING AND PROFESSIONAL STUDIES
OCT. R 1998, 1999:
LABOR AND EMPLOYMENT LAW ETHICS
PRACTICING LAW INSTITUTE
JANUARY 2007:
DEADLY DOZEN ETHICS VIOLATIONS, PANELIST
APRIL, MAY,
AND AUGUST 2005:
WHAT EVERY NEW ATTORNEY MUST KNOW ABOUT ETHICS
DECEMBE 2005:
STAYING OUT OF TROUBLE: FEE DISPUTES WITH CLIENT
NEW YORK STATE BAR ASSOCIATION
MAY 1999:
ETHICS ISSUES IN COMMERCIAL AND FEDERAL LITIGATION
Family Law and the Limits of Zealous Advocacy: Say Yes to Zeal, Say No to Zealotry
Chapter 6
TABLE OF CONTENTS
I.
INTRODUCTION ............................................................................................................................................. 1
II.
BACKGROUND ............................................................................................................................................... 1
III.
RESOURCES FOR THE CURIOUS................................................................................................................. 2
IV.
MERITORIOUS CLAIMS ................................................................................................................................ 3
V.
INADVERTENT DISCLOSURE ...................................................................................................................... 3
VI.
TAPING ............................................................................................................................................................. 4
VII.
UNDERCOVER INVESTIGATIONS .............................................................................................................. 4
VIII.
CONTACT WITH UNREPRESENTED PERSON........................................................................................... 4
IX.
CONFIDENTIALITY, CANDOR TO THE COURT AND THE CRIME-FRAUD EXCEPTION ................. 5
X.
SETTLEMENT NEGOTIATIONS ................................................................................................................... 6
XI.
PARTING ADVICE: REFER TO THE RULES AND THE COMMENTS AND, IF THE MATTER IS
SERIOUS, THE ETHICS OPINIONS ............................................................................................................... 6
APPENDIX A ................................................................................................................................................................. 9
i
Family Law and the Limits of Zealous Advocacy: Say Yes to Zeal, Say No to Zealotry
FAMILY LAW AND THE LIMITS OF
ZEALOUS ADVOCACY:
SAY YES TO ZEAL, SAY NO TO
ZEALOTRY
Watergate, increasing costs of legal services, and the
emergence of attorney advertising 2 were among the
factors that influenced public opinion about lawyers.
In response to the public’s view that the noble
profession of law had been replaced by a business
motivated by greed, forces within the legal profession
sought to elevate the profession and its reputation by
adopting major changes to its rules of professional
conduct. Societal changes led to a focus on legal ethics
and years were spent studying and drafting rules
designed to overhaul both rules governing professional
conduct and the systems charged with enforcing lawyer
discipline. Professional organizations, the courts, and
scholars undertook studies of a vast array of ethics
issues.
At the same time, licensing authorities
increased their scrutiny of applicants and disciplinary
authorities increased their efforts to investigate and
prosecute lawyers for professional misconduct.
Without wandering into the lengthy and detailed
history of the prior or current rules, in 1983, the ABA
adopted the Model Rules of Professional Conduct
(“Model Rules”), which replaced the Model Code of
Professional Responsibility (“Model Code”). 3 The
Model Code was adopted in 1969 and amended
through 1980. Most jurisdictions have followed the
ABA in adopting major portions of both the Model
Code and, later, the Model Rules. Texas supplanted the
old Canons of Ethics and adopted its own version of
the Model Code, including Canon 7, which stated “a
lawyer should represent a client zealously within the
bounds of the law.” After years of discussion and
drafting, in 1990, the Texas Disciplinary Rules of
Professional Conduct became effective. They are
found after Chapter 81 of the Texas Government Code
and are formally cited as Tex. Disciplinary R. Prof.
Conduct, (1989) reprinted in TEX. GOVT. CODE
ANN., tit. 2, subtit. G, app. art X, §9 (Vernon Supp.
1995). We will refer to them hereafter as Disciplinary
Rule or DR.
Rule 1.1 of the ABA’s Model Rules imposes
requirements of lawyer competence and Model Rule
1.3 requires diligence. Neither rule refers to zeal.
Zeal appears once in Preamble to Model Rules and
again in Comment 1 to Model Rule 1.3. 4 In Texas,
Model Rules 1.1 and 1.3 are combined in Texas
Disciplinary Rule 1.01, Competent and Diligent
I.
INTRODUCTION
There seems to be universal agreement among
lawyers that zealous representation, within appropriate
bounds, is essential to our role as lawyers. Approached
another way, it has been said that the duty to zealously
pursue a client’s interests “must be met in conjunction
with, rather than in opposition to, other professional
obligations.” Thornton v. United States, 357 A.2d 429,
437 (D.C. 1976).
As lawyers, we are continually
engaged in the effort to balance our clients’ goals on
the one hand and fulfilling our professional and legal
obligations on the other. What are the rules governing
professional conduct and legal obligations that should
be considered in conjunction with zeal?
We
consider below some of the Texas Disciplinary Rules
that involve the overlap or tension between zealous
advocacy and our other ethical obligations. 1
Following major changes to rules of professional
conduct adopted by the American Bar Association,
most jurisdictions, including Texas, the word “zealous”
no longer appears in any black letter section of the
Texas Disciplinary Rules of Professional Conduct, and
has not since 1990. It may be that this modification,
albeit subtle, signals a change to our duty to zealously
advocate, which, in turn, may affect the State Bar’s
treatment of complaints involving allegedly
overzealous conduct. Even if one were to conclude that
the Rule change has not made a perceptible change to
the way we practice, it is important to focus on the
interplay between zeal and the rights of others in order
to successfully navigate the proverbial gray areas.
There are different ways to achieve this balance.
How, in particular, do you as Family Law
practitioners balance these competing rights? At the
risk of invoking a cliché, Family Law, more than any
other field of law, most directly affects the
relationships that define our lives. How, within your
personal and professional compass, do you weigh the
options? We cannot answer all the questions, but we
can provide general discussions of relevant topic areas
and point you toward the resources that may help you
analyze and resolve your particular ethical quandaries
as they arise.
2 In Bates v. Arizona State Bar, 433 U.S. 350 (1977), the
Supreme Court extended the doctrine of commercial free
speech to lawyer advertising.
II. BACKGROUND
Starting in the 1970s, lawyers began to sense that
public perception about the legal profession was
changing. Scrutiny of laws and lawyers involved in
Many of the Rules that involve the obligation to zealously
advocate are set forth in Appendix A.
1
Chapter 6
In 1908, the ABA adopted the Canons of Ethics.
Comment 1 provides, in relevant part that, “a lawyer must
also act with commitment and dedication to the interests of
the client and with zeal in advocacy upon the client's
behalf.”
3
4
1
Family Law and the Limits of Zealous Advocacy: Say Yes to Zeal, Say No to Zealotry
Representation. 5
The Preamble to the Texas
Disciplinary Rules, at Paragraph 2, states that, “as
advocate, a lawyer zealously asserts the client's
position under the rules of the adversary system.” The
Preamble states in Paragraph 3 that, “in all professional
functions, a lawyer should zealously pursue clients’
interests within the bounds of the law.” Comment 6 to
DR 1.01 provides that, “a lawyer should act … with
zeal in advocacy upon the client’s behalf.” For this
paper we address some of the topics associated with
our roles as zealous advocates. However, during the
30-minute live presentation of this topic, you – the
experts of how and when these issues arise for Family
Law practitioners – will
be invited to state your
opinions and ask your questions about the limits of zeal
in your area of practice. Prepare your comments and
questions with an eye toward protecting the strategies
you want to keep to yourself and revealing only the
tactics of others you consider improper.
Chapter 6
website.
When one reviews the Disciplinary Rules the
format reveals there are Disciplinary Rules and,
following each Disciplinary Rule, there is a Comment
or multiple Comments. The Disciplinary Rules are the
black letter law; the Comments are designed to be
illustrative, but do not state enforceable standards.
One cannot “violate” a Comment. This drafting
scheme is described in Paragraph 10 of the Preamble to
the Disciplinary Rules:
The Texas Disciplinary Rules of Professional
Conduct are rules of reason. The Texas
Disciplinary Rules of Professional Conduct
define proper conduct for purposes of
professional discipline. They are imperatives,
cast in the terms "shall" or "shall not." The
Comments are cast often in the terms of
"may" or "should" and are permissive,
defining areas in which the lawyer has
professional discretion. When a lawyer
exercises such discretion, whether by acting
or not acting, no disciplinary action may be
taken. The Comments also frequently
illustrate or explain applications of the rules,
in order to provide guidance for interpreting
the rules and for practicing in compliance
with the spirit of the rules. The Comments do
not, however, add obligations to the rules and
no disciplinary action may be taken for
failure to conform to the Comments.
III. RESOURCES FOR THE CURIOUS
Throughout this paper we will be referring to,
among other things, the Texas Disciplinary Rules of
Professional Conduct, the Comments to the
Disciplinary Rules, and Texas Ethics Opinions. To
assist anyone who wishes to consult the source
materials in the future, a little background and some
research tips are provided.
The Texas Disciplinary Rules of Professional
Conduct and the Texas Rules of Disciplinary
Procedure are in appendices that follow Chapter 81 of
the Texas Government Code, “the State Bar Act.”
Looking for the Disciplinary Rules there is a pain in
the neck, especially in the internet age. Westlaw or
Lexis/Nexis are obvious avenues. However, the Texas
Disciplinary Rules can be located from many sources
with a simple search engine query. A non-profit
foundation, the Texas Center for Legal Ethics and
Professionalism, maintains a particularly useful
(a) A lawyer shall not accept or continue employment in a
legal matter which the lawyer knows or should know is
beyond the lawyer's competence, unless:
(1) another lawyer who is competent to handle the matter is,
with the prior informed consent of the client, associated in
the matter; or
(2) the advice or assistance of the lawyer is reasonably
required in an emergency and the lawyer limits the advice
and assistance to that which is reasonably necessary in the
circumstances.
(b) In representing a client, a lawyer shall not:
(1) neglect a legal matter entrusted to the lawyer; or
(2) frequently fail to carry out completely the obligations
that the lawyer owes to a client or clients.
(c) As used in this Rule, “neglect” signifies inattentiveness
involving a conscious disregard for the responsibilities owed
to a client or clients.
5
2
Texas case authority has long held that the Disciplinary
Rules have the “force and effect of statute” (see, e.g.,
Arnett v. State, 304 W.W.2d 386, 389 (Tex. Civ. App.
– Eastland, writ ref’d n.r.e.) and are to be construed
using the normal rules of statutory construction (see,
e.g., State v. Malone, 692 S.W. 2d 888, 896 (Tex. App.
– Beaumont 1985, writ ref’d n.r.e.). Therefore,
researching Texas cases that are appeals from
disciplinary prosecutions may be helpful; however, it
must be said the that majority of Texas disciplinary
case opinions to do not contain extensive, detailed
analyses or discussions of the language of Disciplinary
Rules. Many are concerned with procedural or
evidentiary issues and not the meaning or application
of specific Disciplinary Rules.
And, while the
Disciplinary Rules are said, again in the Preamble, to
not create private claims or legal rights, the
Disciplinary Rules are often used as guides or
standards in fee dispute and attorney disqualification
cases. So, do not confine your case law search to
disciplinary prosecution cases.
There are also formal ethics opinions issued by
the Supreme Court of Texas’ Professional Ethics
Committee. While the Court has the inherent authority
to regulate the profession, Texas has adopted a two-
Family Law and the Limits of Zealous Advocacy: Say Yes to Zeal, Say No to Zealotry
standard for determining whether the lawyer has
violated the Rule is the individual lawyer’s reasonable
belief about the whether the claim is frivolous. Thus,
the lawyer’s position must be reasonable. However,
sanctions will not be imposed so long as the lawyer in
good faith believed the claim had merit. See, Barnes v.
State Bar of Texas, 888 S.W.2d 102 (Tex. App. –
Corpus Christi 1994, no writ).
pronged approach in which the Texas Legislature, to
aid the Supreme Court in its exercise of inherent
authority passed
Subchapter F of Chapter 81,
“Committee on Professional Ethics.” Sections 81.091
through 81.095 establish the Committee and delineate
its powers and duties. As it is not possible to delegate
a power one does not possess and the Supreme Court
of Texas does not have advisory opinion authority, the
statute seeks to avoid improper delegation with this
statement in Section 81.092(c): “Committee opinions
are not binding on the supreme court.” The exact
nature or level of the precedential value of a Texas
Ethics Opinion is not clear. There is not a single, ideal
way to research Texas Ethics Opinions; however, all
opinions are available online through the Texas Center
for Legal Ethics and Professionalism’s website, along
with a subject index. The subject index is not
completely accurate and the keyword search function
of the Texas Center’s website is not always
operational, but that should not deter the serious
researcher.
The American Bar Association is a voluntary
membership organization and exercises no disciplinary
authority over any attorney. However, the ABA is a
leader in the field of model ethics rules and model
disciplinary enforcement standards and provides a
wealth of information for the dedicated researcher.
The ABA Ethics Opinions, both Formal and Informal,
can be accessed online through typical search engine
queries and, for ABA members, directly through ABA
online resources.
Finally, for those who are unable to find answers
from the above sources, there is always “foreign
authority.”
Every state of the union publishes
disciplinary case opinions and every state has some
sort of ethics committee or ethics counsel that
publishes advisory opinions. Some local bars, such as
the New York City Bar Association, also publish ethics
opinions. These state and local resources can be
located with targeted online searches.
Finally, while Chapter 81 of the Texas
Government Code does not contain any black letter
ethics rules, it does contain provisions that may affect a
lawyer’s rights and, thereby, affect Disciplinary Rule
enforcement actions. It is occasionally fruitful to
review the State Bar Act just in case something in the
statute affects something governed by the Texas Rules
of Disciplinary Procedure.
We now turn to some of the topic areas that may
fall under the umbrella of “zealous advocacy within the
bounds of the law.”
IV. MERITORIOUS CLAIMS
Pursuant to DR 3.01, a lawyer is prohibited from
bringing, defending, asserting or controverting an issue
unless the lawyer reasonably believes that there is a
basis for the position that is not frivolous. The
Chapter 6
3
V. INADVERTENT DISCLOSURE
What do we do about confidential (which
encompasses privileged) information inadvertently
received? Is it permissible to read it? Are we
obligated to notify our adversary that we have
confidential information? See, ABA Formal Op. 440
(Formal Op. 06-440), Unsolicited Receipt of Privileged
or Confidential Materials: Withdrawal of Formal Op.
94-382. The answers are not always clear and vary
from jurisdiction to jurisdiction. ABA Model Rule
4.4(b), which Texas and many other jurisdictions did
not adopt, provides that a lawyer who knows or
reasonably knows that he has received a document or
electronically stored information inadvertently must
promptly notify the sender. According to ABA Formal
Op. 06-440, this Rule does not require that the lawyer
refrain from reviewing the information and there is a
strong argument that the obligation to “zealously
advocate” requires a recipient lawyer to review the
materials. This argument also makes the point that in
some instances you may not know the nature of the
information without reading it. However, in other
situations, it will be clear that the information is a
confidential and privileged communication. Naturally,
when the answer is not obvious, the cautious
practitioner will consult the Disciplinary Rules and any
pertinent case law to address the issue of concern. A
novel approach suggests that the Rules setting forth a
lawyer’s duty to safeguard property applies. See
generally, Brian S. Faughan & Douglas R. Richmond,
Model Rule 1.15: The Elegant Solution to the Problem
of Purloined Documents, 26 ABA/BNA LAW. MAN.
PROF. CONDUCT 623 (Oct. 13, 2010); Professional
Responsibility in Litigation, by Douglas R. Richmond,
Brian S. Faughnan, and Michael L. Matula (ABA
2012); James M. Fischer, Ethically Handling the
Receipt of Possibly Privileged Information, 1 St.
Mary's J. Legal Malpractice & Ethics 200 (2011)
(purloined documents and inadvertently disclosed
materials should be treated under single standard as
unintended disclosures).
What if you are the inadvertent discloser? What
can you do? First, look to Texas Rule of Civil
Procedure 193.3. TRCP 193.3 provides that the
attorney-client privilege is not waived if, within ten
days of discovering the inadvertent disclosure, the
producing party amends the response and identifies the
privileged material.
The requesting party must
Family Law and the Limits of Zealous Advocacy: Say Yes to Zeal, Say No to Zealotry
Disciplinary Rules would prohibit the lawyer from
doing personally.
There are certain circumstances in which courts
have found that it is appropriate for lawyers to employ
investigators to carry out undercover investigations
involving misrepresentation or pre-texting. Those
instances are generally limited to trademark
infringement claims [Gidatex v. Campaniello, 82
F.Supp.2d 119, 123 (S.D.N.Y., 1999)] and
discrimination cases [Mena v. Key Food Stores Co-op.,
Inc., 195 Misc.2d 402, 758 N.Y.S.2d 246 (Sup. Ct.,
N.Y. Co. 2003)] where the court determines that the
information sought and claims made are in the public
interest. However, in Wisconsin Supreme Court in
Office of Lawyer Regulation v. Hurley, (Wis.
2009)(unpublished decision), the court dismissed
disciplinary charges against Hurley, a criminal defense
lawyer, whose client was charged with child
pornography. Hurley and his investigator devised a
scheme involving deception that revealed that the
origin of the pornographic materials was the minor’s
computer, not that of the accused. See also New York
County Ethics Op. 737 (2007); Temkin, Deception in
Undercover Investigations: Conduct-Based vs. StatusBased Ethical Analysis, 32 Seattle U. L. Rev. 123 (Fall
2008).
promptly return the specified material and all copies.
See In re Parnham, 263 S.W.3d 97 (Tex. App. –
Houston [1st Dist.] 2006, orig. proceeding) (civil
procedure rule permits sender to “snap back”
privileged material inadvertently produced in discovery
but does not require or authorize disqualification of
recipient). Other jurisdictions have similar snap-back
statutes.
Pursuant to Texas case law, and the law most
jurisdictions, the determination of whether the
attorney-client privilege has been waived is a matter of
law dependent on the specific factual circumstances.
See, Alldread v. City of Grenada, 988 F.2d 1425, 1434
(5th Cir. 1993) (adopting a case-by-case analysis of
the facts surrounding a particular disclosure to determine
whether the privilege has been waived); Apex Municipal
Fund v. N-Group Securities, 841 F.Supp. 1423, 1433
(5th Cir. 1993); (factors to be considered in the caseby-case analysis: the reasonableness of precautions
taken to prevent disclosure; the amount of time taken
to remedy the error; the scope of discovery; the extent
of the disclosure; and the overriding issue of fairness).
Depending on the situation, it may be to client’s
advantage to seek a court determination of the
privilege, to notify your opponent of the inadvertent
disclosure shifting the burden of a waiver, or waiting to
see what happens in view of the fact that the length of
time taken to correct the error is factored in to the
determination.
VIII.
VI. TAPING
Most jurisdictions, including Texas, permit
lawyers to tape conversations with clients or third
parties, so long as applicable laws do not prohibit
doing so. See Texas Ethics Op. No. 575 (2006). The
opinion provides that a lawyer may make undisclosed
recordings of phone conversations with other parties,
including clients. Where the other caller is a client, the
lawyer should take steps to protect client confidences
and should not make the recording without a legitimate
reason. Moreover, regardless of who the other party is,
the lawyer may not, in the course of the recording,
make misrepresentations concerning any matter,
including whether the call is s being recorded.
VII. UNDERCOVER INVESTIGATIONS
Lawyers who employ investigators for standard
investigation services, as well as undercover
investigations, must provide clear boundaries and
supervise their investigators. DR 5.03; DR 8.04(a)(1).
In addition to Rules prohibiting any kind of dishonesty
and misrepresentation, Rules protecting the rights of
third persons, such as DR 4.03, come in to play. In
addition, DR 8.04(a) prohibits a lawyer from “assisting
or inducing” another to violate the Rules. This is
understood to mean that a lawyer generally cannot
utilize an intermediary to do something the
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4
CONTACT WITH UNREPRESENTED
PERSON
DR 4.03, “Dealing With Unrepresented
Person,” prohibits lawyers from stating or implying
that they are disinterested in legal matters where they
represent a client.
Where a lawyer knows or
reasonably should know that the unrepresented person
misunderstands the lawyer’s role, the lawyer is
required to make reasonable efforts to correct the
misunderstanding.
DR
4.03
governs
all
communications between a lawyer and an
unrepresented person, regardless of whether the
unrepresented person is a party, a witness, or neither,
without regard to whether the unrepresented party’s
interests are aligned with the client’s, and regardless of
whether a transaction or proceeding is pending or
anticipated.
The Comment to DR 4.03 advises that the only
advice lawyers should give an unrepresented party is to
retain counsel. See In re Marriage of Bonds, 5 P.3d
815 (Cal. 2000) (the California Supreme Court
enforced a prenuptial agreement finding that an
attorney may convey information discussed with his
own client to other party but may not violate the duty
of loyalty or undertake to represent both parties
without an appropriate waiver of the conflict of
interest); c.f., In re Marriage of Foran, 834 P.2d 1081
(Wash. App. 1992) (upholding refusal to enforce
prenuptial agreement based on insufficient evidence
that wife understood a patently unfair agreement where
Family Law and the Limits of Zealous Advocacy: Say Yes to Zeal, Say No to Zealotry
husband’s lawyer urged wife to retain counsel but
failed to explain why); Texas Ethics Op. 585 (2008)
(counseling client to hire all lawyers in small
community in order to deprive opponent of local
counsel violates DR 4.04(a) when there is no
substantial purpose other than to delay or burden
opponent); Illinois Ethics Op. 98-06 (1998) (if wife
chooses to be unrepresented in divorce, husband’s
attorney should “suggest in writing” that she retain
counsel to review any settlement documents;
husband’s attorney “should also take care that any
agreement with an unrepresented spouse is not so onesided that it can later be set aside as unconscionable”).
IX. CONFIDENTIALITY, CANDOR TO THE
COURT
AND
THE
CRIME-FRAUD
EXCEPTION
When are you required to disclose past, ongoing,
or future client criminal or fraudulent conduct, when
are you permitted to disclose such information, and
when may you remain mute? The old rule of thumb
was “past conduct is privileged, ongoing conduct is
not, and future conduct depends on the seriousness.”
The answer to these questions is more complex than
that now and no general rule can apply to all situations.
The 1990 revision of the Texas Disciplinary Rules
moved away from the principle that, in most instances,
the sanctity of the attorney-client relationship is
paramount, to a view that sometimes a lawyer’s duties
to the integrity of the legal profession or the fairness of
the judicial system trump client loyalty.
Pursuant to DR 1.02(d), when a lawyer has
confidential information clearly establishing that a
client is likely to commit a criminal or fraudulent act
that is likely to result in substantial financial injury to
the interests or property of another, the lawyer shall
promptly make reasonable efforts to dissuade the client
from engaging in the unlawful activity. Pursuant to
DR 1.02(e) and DR 4.01(b), where the lawyer has
learned that the client has used the lawyer’s services in
furtherance of a crime or fraud, the lawyer must
remonstrate with the client and make reasonable efforts
to persuade the client to “take corrective action.” If a
client refuses to discontinue criminal or fraudulent
activity or refuses to correct an opinion or
representation the lawyer has made because he was
unaware of a client’s criminal or fraudulent conduct at
the time, the lawyer may withdraw from the
representations. See DR 1.15(a)(1), (b)(2), and (b)(3).
In that event, the lawyer is obligated to make a “noisy
withdrawal,” that is, withdraw based on disclosure of
information that will reveal the lawyer’s unintentional
role in the criminal or fraudulent conduct. It may be
possible to seek to noisily withdraw in camera and let
the court determine whether the information forming
the basis of the withdrawal motion should be revealed
to the opposing party. Of course, the nature of the
5
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information will influence the court’s decision. Texas
law is still evolving on this topic.
DR 1.05 contains provisions setting forth when a
lawyer may reveal confidential information [sections
(c) and (d)] as well as provisions mandating disclosure
of confidential information [sections (e) and (f)].
Pursuant to DR 1.05(c)(4), a lawyer may reveal
confidential information in order to comply with a
court order, another Disciplinary Rule, or other law.
To comply with Texas Family Code §261.101, lawyers
are required to reveal confidential or privileged
information to protect a child from abuse or neglect.
So, while one could argue that such disclosure is
permissible but not required under DR 1.05(c)(4), the
inescapable conclusion is that disclosure is mandatory
due to the directives of §261.101(c), which excludes
attorney-client privilege as a defense to prosecution.
DR 1.05(e) and (f) set forth the instances in which a
lawyer must reveal confidential information.
According to DR 1.05(e), where a lawyer is in
possession of confidential information “clearly
establishing that a client is likely to” engage in a
criminal or fraudulent act that is likely to cause death
or substantial bodily harm, the lawyer “shall” reveal
confidential information to the extent necessary to
prevent the act. In addition, pursuant to DR 1.05(f), a
lawyer is required to disclose information as required
by DR 3.03, “Candor Toward the Tribunal.” DR
3.03(a)(2) prohibits a lawyer from failing to disclose a
fact to a tribunal when disclosure is necessary to avoid
assisting in a criminal or fraudulent act and DR 3.03(b)
requires a lawyer to take reasonable remedial
measures, including disclosure of the true facts, when
the lawyer learns that material evidence he has offered
is false. Further to a lawyer’s obligation to reveal
confidential information, DR 4.01(b) prohibits a
lawyer from “failing to disclose a material fact to a
third person when disclosure is necessary to avoid
making he lawyer a party to a criminal act or
knowingly assisting in fraudulent act perpetrated by a
client.” c.f., Texas Ethics Op. 589 (2009) (lawyer who
learns that the opposing party and an adverse witness
may be engaged in illegal activity should not report
such conduct if the report would adversely affect his
client’s interests unless “unless the lawyer had an
overriding legal obligation to make such a report” but
the lawyer should not use information about adverse or
third parties for no other reason than to embarrass,
delay or burden). In addition, DR 8.04, “Misconduct,”
prohibits a lawyer from knowingly violating a
Disciplinary Rule, assisting or inducing another to
violate a Disciplinary Rules, or “do[ing] so through the
acts of another” whether or not such violation occurred
in the course of a client-lawyer relationship.
Obligations of candor relating to the crime-fraud
exception are specified in DR 3.03(a)(1), (2), and (5),
which, respectively, provide that a lawyer may not
Family Law and the Limits of Zealous Advocacy: Say Yes to Zeal, Say No to Zealotry
agreeing not to seek or represent clients against the
same defendant or share fees with another lawyer in
connection with a case against the same defendant.
See, Texas Ethics Op. 505 (1994) (It is a violation of
DR 5.06(c) to agree not to seek clients or share fees
with other lawyers in future claims against same
defendant).
It is inadvisable to commence or threaten to
commence a civil, disciplinary or criminal complaint
against an adversary or an adversary’s client, but it is
not strictly prohibited. DR 4.04 states at (b)(1) that, “a
lawyer shall not present, participate in presenting, or
threaten to present criminal or disciplinary charges
solely to gain an advantage in a civil matter, or at
(b)(2), civil, criminal or disciplinary charges against a
complainant, a witness, or a potential witness in a bar
disciplinary proceeding solely to prevent participation
by the complainant, witness or potential witness
therein. It is usually better practice to await the
outcome of a civil dispute or proceeding to bring a
disciplinary or criminal complaint. As a practical
matter, there are almost always more effective and
subtle means available to convey the point without
violating the Rule. Moreover, by including the
limitation “solely, the Rule anticipates the possibility
that there may be instances in which threatening or
commencing another proceeding is permissible.
make a make a false statement of material fact, fail to
disclose a fact that is necessary to avoid assisting in a
criminal or fraudulent act, or offer or use evidence that
the lawyer knows to be false. Comments 9 through 12
address the dilemma of client perjury. In the event that
a client commits perjury, the lawyer must take
reasonable remedial measures, including revealing the
perjury. As explained in Comment 13 to DR 3.03, the
lawyer is not obligated to disclose false testimony of a
client or a witness that has been elicited by others, but
the lawyer is obligated to entreat the client or witness
to withdraw the false testimony. However, a lawyer
may not use the false information in support of his
client’s case. Clearly, our duty to zealously advocate
when dealing with client crime or fraud, is often
complicated.
By making a considered effort to
analyze the application of these rules to your
circumstances, you are likely to markedly improve
your defense against any
allegations civil or
disciplinary proceedings.
X. SETTLEMENT NEGOTIATIONS
Lawyers are required to comply with a client’s
instructions about whether to accept a settlement,
subject to certain limitations, pursuant to DR
1.02(a)(2), discussed above. In settlement negotiation
ethics, context matters. Several Disciplinary Rules
prohibit dishonesty. Among others, DR 4.01,
“Truthfulness in Statements to Others,” and DR 8.04,
“Misconduct,” at paragraph 3, specifically prohibit a
lawyer from knowingly making a false statement of
material fact or from failing to disclose a material fact
where disclosure is necessary to avoid assisting in
criminal or fraudulent activity. Comment 1 to DR 4.01
points out that whether a fact “should be regarded” as
material varies depending on the circumstances and
that, “under generally accepted conventions in
negotiation, a party's supposed intentions as to an
acceptable settlement of a claim may be viewed merely
as negotiating positions rather than as accurate
representation of material fact.” See ABA Formal Op.
06-439, “Lawyers’ Obligation of Truthfulness When
Representing a Client in Negotiation” (a lawyer may
not make a false statement of material fact to a third
person, but statements regarding a party's negotiating
goals or willingness to compromise, as well as
statements that can fairly be characterized as
negotiation “puffing,” ordinarily are not considered
“false statements of material fact” within the meaning
of the Model Rules); William J. Wernz & David L.
Sasseville, Negotiation Ethics, 66-APR Bench & B.
Minn. 22 (April 2009) (“my client wants his day in
court, no matter how much it costs him,” and “my
client will not take a penny less than X” are ploys that,
“no sensible lawyer regards … as truthful statements”).
A lawyer is prohibited from entering into a
settlement agreement on behalf of one client while
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6
XI. PARTING ADVICE: REFER TO THE
RULES AND THE COMMENTS AND, IF
THE MATTER IS SERIOUS, THE ETHICS
OPINIONS
It is important, no matter what your field of
practice, to consult the Texas Disciplinary Rules of
Professional Conduct and Comments regularly. The
Rules and Comments provide a great deal of
information and are the starting point for answers to
your questions about appropriate conduct.
As
indicated above, the Rules have varying standards of
knowledge: actual knowledge, subjective or objective
knowledge, reasonable belief, and “information clearly
establishing” are sometimes the phrasing varies from
Rule to Rule. Some Rules provide that a lawyer may
engage in certain conduct and other Rules mandate
action. Some Rules only apply to conduct in the
representation of a client and some apply to all
conduct. It is also wise to read the opinions of the
Supreme Court of Texas’ Committee on Professional
Ethics as they are issued.
The only “official”
publication of ethics opinions is the Texas Bar Journal.
As the Committee issues opinions they are published in
the Texas Bar Journal. There are probably five to ten
opinions issued in any given year. Since the Bar
Journal is sent to every active member of the State Bar
of Texas, every lawyer has access to a new ethics
opinion shortly after its issuance. When you see the
TBJ index line “Ethics Opinion” flip to the noted page
Family Law and the Limits of Zealous Advocacy: Say Yes to Zeal, Say No to Zealotry
and read the opinion. It will take little time and you
might read something that applies to your practice. If
nothing else, you begin to see the logic applied to
ethics and disciplinary questions by the people charged
with giving advisory opinions. There have only been
two new opinions published in 2015 and both are in the
January Texas Bar Journal. So, reading new ethics
opinions is not a burdensome addition to your list of
regular legal reading materials.
At a minimum, a general familiarity with the
organization structure of the Disciplinary Rules will
help narrow the focus when reference to the
Disciplinary Rules in a particular instance seems
appropriate.
When controversy arises, if your
adversary or anyone else questions your conduct or
position, you are ahead of the game if you can show
that you reviewed the applicable Rules and Comments.
Do not expect to memorize all the Rules. Even
Professional Responsibility practitioners consult the
Rules often because it is not possible to know each
nuance and application of every Rule and because
ethics questions are fact specific. Sometimes there
may appear to be conflicting duties under different
Rules. Given the lack of certainty about the “right
answer” to many ethics questions, the knowledge you
develop by occasional review of disciplinary law will
stand you in good stead whether you are in court and
do not have ready access to the Disciplinary Rules of
Professional Conduct or you do have time to check the
law and access your rights and obligations.
7
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Chapter 6
APPENDIX A
Selected Texas Disciplinary Rules of Professional Conduct. Provisions of these Rules that are not relevant to
this discussion have been omitted as indicated by an asterisk.
Rule 1.02. Scope and Objectives of Representation
(a) Subject to paragraphs (b), (c), (d), and (e), (f), and (g), a lawyer shall abide by a client's decisions:
(1) concerning the objectives and general methods of representation;
(2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law;
(3) In a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and
whether the client will testify.
(b) A lawyer may limit the scope, objectives and general methods of the representation if the client consents after
consultation.
(c) A lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent.
A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel and
represent a client in connection with the making of a good faith effort to determine the validity, scope, meaning or
application of the law.
(d) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or
fraudulent act that is likely to result in substantial injury to the financial interests or property of another, the lawyer
shall promptly make reasonable efforts under the circumstances to dissuade the client from committing the crime or
fraud.
(e) When a lawyer has confidential information clearly establishing that the lawyer's client has committed a criminal
or fraudulent act in the commission of which the lawyer's services have been used, the lawyer shall make reasonable
efforts under the circumstances to persuade the client to take corrective action.
(f) When a lawyer knows that a client expects representation not permitted by the rules of professional conduct or
other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.
(g) A lawyer shall take reasonable action to secure the appointment of a guardian or other legal representative for, or
seek other protective orders with respect to, a client whenever the lawyer reasonably believes that the client lacks
legal competence and that such action should be taken to protect the client.
See Comments 7 - 11.
Rule 1.05. Confidentiality of Information
(a) “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 attorneyclient 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.
(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e) and (f), a lawyer shall not
knowingly:
(1) Reveal confidential information of a client or a former client to:
(i) a person that the client has instructed is not to receive the information; or
(ii) anyone else, other than the client, the client's representatives, or the members, associates, or employees of the
lawyer's law firm.
(2) Use confidential information of a client to the disadvantage of the client unless the client consents after
consultation.
(3) Use confidential information of a former client 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.
(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client
consents after consultation.
(c) A lawyer may reveal confidential information:
(1) When the lawyer has been expressly authorized to do so in order to carry out the representation
(2) When the client consents after consultation.
(3) To the client, the client's representatives, or the members, associates, and employees of the lawyer's firm, except
when otherwise instructed by the client.
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Family Law and the Limits of Zealous Advocacy: Say Yes to Zeal, Say No to Zealotry
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(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas
Disciplinary Rules of Professional Conduct, or other law.
(5) To 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.
(6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the
lawyer's associates based upon conduct involving the client or the representation of the client.
(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a
criminal or fraudulent act.
(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client's criminal or
fraudulent act in the commission of which the lawyer's services had been used.
(d) A lawyer also may reveal unprivileged client information:
(1) When impliedly authorized to do so in order to carry out the representation.
(2) When the lawyer has reason to believe it is necessary to do so in order to:
(i) carry out the representation effectively;
(ii) defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct;
(iii) respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another
person or organization responsible for the payment of the fee for services rendered to the client.
(e) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or
fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer shall reveal
confidential information to the extent revelation reasonably appears necessary to prevent the client from committing
the criminal or fraudulent act.
(f) A lawyer shall reveal confidential information when required to do so by Rule 3.03(a)(2), 303(b) or by Rule
4.10(b).
See Comments 9 - 22.
Rule 3.01. Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably
believes that there is a basis for doing so that is not frivolous.
Rule 3.02. Minimizing the Burdens and Delays of Litigation
In the course of litigation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of
the case or that unreasonably delays resolution of the matter.
The Comments discuss the instances in which increasing delay and costs is an appropriate means of accomplishing
the client’s interests, as well as those in which the increased burdens “unreasonably delays resolution of the matter.”
Rule 3.03. Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;
(3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably
believes should be known by that entity for it to make an informed decision;
(4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse
to the position of the client and not disclosed by opposing counsel; or
(5) offer or use evidence that the lawyer knows to be false.
(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith
effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are
unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.
(c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably
possible.
All of the Comments under this Rule are relevant to the obligation of zealous advocacy.
Rule 3.04. Fairness in Adjudicatory Proceedings
A lawyer shall not:
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(a) unlawfully obstruct another party's access to evidence; in anticipation of a dispute unlawfully alter, destroy or
conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value;
or counsel or assist another person to do any such act.
(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. But a lawyer may advance, guarantee, or acquiesce in the payment of:
(1) expenses reasonably incurred by a witness in attending or testifying;
(2) reasonable compensation to a witness for his loss of time in attending or testifying; or
(3) a reasonable fee for the professional services of an expert witness.
(c) except as stated in paragraph (d), in representing a client before a tribunal:
(1) habitually violate an established rule of procedure or of evidence;
(2) state or allude to any matter that the lawyer does not reasonably believe is relevant to such proceeding or that will
not be supported by admissible evidence, or assert personal knowledge of facts in issue except when testifying as a
witness;
(3) state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant
or the guilt or innocence of an accused, except that a lawyer may argue on his analysis of the evidence and other
permissible considerations for any position or conclusion with respect to the matters stated herein;
(4) ask any question intended to degrade a witness or other person except where the lawyer reasonably believes that
the question will lead to relevant and admissible evidence; or
(5) engage in conduct intended to disrupt the proceedings.
(d) knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a
tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client's
willingness to accept any sanctions arising from such disobedience.
(e) request a person other than a client to refrain from voluntarily giving relevant information
to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving
such information.
Rule 3.05. Maintaining Impartiality of Tribunal
A lawyer shall not:
(a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of
practice or procedure;
(b) except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure,
communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or
person concerning a pending matter other than:
(1) in the course of official proceedings in the cause;
(2) in writing if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not
represented by a lawyer;
(3) orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.
(c) For purposes of this rule:
(1) “Matter” has the meanings ascribed by it in Rule 1.10(f) of these Rules;
(2) A matter is “pending” before a particular tribunal either when that entity has been selected to determine the matter
or when it is reasonably foreseeable that that entity will be so selected.
Rule 3.06. Maintaining Integrity of Jury System
(a) A lawyer shall not:
(1) conduct or cause another, by financial support or otherwise, to conduct a vexatious or harassing investigation of a
venireman or juror; or
(2) seek to influence a venireman or juror concerning the merits of a pending matter by means prohibited by law or
applicable rules of practice or procedure.
(b) Prior to discharge of the jury from further consideration of a matter, a lawyer connected therewith shall not
communicate with or cause another to communicate with anyone he knows to be a member of the venire from which
the jury will be selected or any juror or alternate except juror, except in the course of official proceedings.
(c) During the trial of a case, a lawyer not connected therewith shall not communicate with or cause another to
communicate with a juror or alternate juror concerning the matter.
(d) After discharge of the jury from further consideration of a matter with which the lawyer was connected, the
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lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or
embarrass the juror or to influence his actions in future jury service.
(e) All restrictions imposed by this Rule upon a lawyer also apply to communications with or investigations of
members of a family of a venireman or a juror.
(f) A lawyer shall reveal promptly to the court improper conduct by a venireman or a juror, or by another toward a
venireman or a juror or a member of his family, of which the lawyer has knowledge.
(g) As used in this Rule, the terms “matter” and “pending” have the meanings specified in Rule 3.05(c).
Rule 3.07. Trial Publicity
(a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person
would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know
that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not
counsel or assist another person to make such a statement.
(b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases if the adjudication is
ongoing or imminent, by making an extrajudicial statement of the type referred to in that paragraph when the
statement refers to:
(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness; or
the expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense;
the existence or contents of any confession, admission, or statement given by a defendant or suspect; or that person's
refusal or failure to make a statement;
(3) the performance, refusal to perform, or results of any examination or test; the refusal or failure of a person to
allow or submit to an examination or test; or the identity or nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could
result in incarceration; or
(5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and
would if disclosed create a substantial risk of prejudicing an impartial trial.
(c) A lawyer ordinarily will not violate paragraph (a) by making an extrajudicial statement of the type referred to in
that paragraph when the lawyer merely states:
(1) the general nature of the claim or defense;
(2) the information contained in a public record;
(3) that an investigation of the matter is in progress, including the general scope of the investigation, the offense,
claim or defense involved;
(4) except when prohibited by law, the identity of the persons involved in the matter;
(5) the scheduling or result of any step in litigation;
(6) a request for assistance in obtaining evidence, and information necessary thereto;
(7) a warning of danger concerning the behavior of a person involved, when there is a reason to believe that there
exists the likelihood of substantial harm to an individual or to the public interest; and
(8) if a criminal case:
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
Comment 1 provides that the lawyer’s right to free speech is subordinate to the right to a fair trial, but that constraints
on a lawyer’s right to free speech should be balanced with the matters of general public concern.
Comment 3 explains that the existence of “material prejudice” depends on the surrounding circumstances.
Comment 5 concerns special rules governing confidentiality for proceedings in juvenile, domestic relations and
mental disability proceedings.
Rule 4.01. Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to
a criminal act or knowingly assisting a fraudulent act perpetrated by a client.
Comment 1 directly addresses situations in which statements “should be regarded” as material in the circumstances,
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such as negotiating transactions or settlement. With regard to settlement, Comment 1 states, “under generally
accepted conventions in negotiation, a party's supposed intentions as to an acceptable settlement of a claim may be
viewed merely as negotiating positions rather than as accurate representation of material fact.”
Comments 2 and 3 address false statements and failure to disclose a material fact and therefore overlaps with parts of
Rules 1.02, 1.05, 1.15 and 3.03.
Rule 4.02. Communication with One Represented by Counsel
(a) In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the
subject of the representation with a person, organization or entity of government the lawyer knows to be represented
by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by
law to do so.
(b) In representing a client a lawyer shall not communicate or cause another to communicate about the subject of
representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring
with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
(c)*
(d)*
Rule 4.03. Dealing With Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that
the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person
misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the
misunderstanding.
Rule 4.04. Respect for Rights of Third Persons
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass,
delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer shall not present, participate in presenting, or threaten to present:
(1) criminal or disciplinary charges solely to gain an advantage in a civil matter; or
(2) civil, criminal or disciplinary charges against a complainant, a witness, or a potential witness in a bar disciplinary
proceeding solely to prevent participation by the complainant, witness or potential witness therein.
Rule 5.06. Restrictions on Right to Practice
A lawyer shall not participate in offering or making:
(a) *
(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a suit or
controversy, except that as part of the settlement of a disciplinary proceedings against a lawyer an agreement may be
made placing restrictions on the right of that lawyer to practice.
Rule 8.04. Misconduct
(a) A lawyer shall not:
(1) violate these rules, knowingly assist or induce another to do so, or do so through the acts of another, whether or
not such violation occurred in the course of a client-lawyer relationship;
(2)*
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(4) engage in conduct constituting obstruction of justice;
(5)*, (6)* ,(7)*, (8)*, (9)*, (10)*, (11)*, (12)*, 7(b)*
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