President's Page • October 2024

‘Lawyers as Officers of the Court— ’
A Privilege Burdened With Conditions

In the mid-1990s, I defended an outdoor equipment manufacturer in a products liability lawsuit. The main allegation in the case was that a metal bar connecting the operator’s seat to the equipment had broken, causing him to fall off and fracture two vertebrae. As I was combing through the client’s documents, I came across an internal memorandum from months before the alleged injury, alerting management that the seats had been inadequately welded on a number of units, including the specific unit the plaintiff was operating. Management took no action in response to the memo.

Immediately, I brought the memo to my client’s attention and gave him the bad news that the memo was directly responsive to a pending discovery request and that no privilege protected it from disclosure. The client asked whether we could avoid producing the memo if I simply returned it to him, so it was no longer in my custody. I told him that option wasn’t possible because I was an “officer of the court” and had a duty to produce the memo . . . and that is what we did.

As attorneys, we may be familiar with the term “officer of the court,” but not fully comprehend that it is a fiduciary responsibility under Texas law. The first paragraph of the preamble to the Texas Disciplinary Rules of Professional Conduct states that a lawyer is an “officer of the legal system” and a “guardian of the law,” and that as such, we “play a vital role in the preservation of society.”

The Supreme Court of Texas has opined on this duty on several occasions. The Court has stated that “[m]embership in the bar is a privilege burdened with conditions.” The Court has explained that “as officers of the court, lawyers voluntarily accept a ‘fiduciary responsibility’ to the justice system and have a ‘duty to protect its integrity.’” The Court has further explained that a lawyer is “an intimate and trusted and essential part of the machinery of justice, an ‘officer of the court’ in the most compelling sense.”¹

Unfortunately, few non-lawyer clients are aware of the parallel duties that attorneys simultaneously owe to their clients and to the legal system. And this misunderstanding can sometimes lead to frustration and confusion when clients’ desires and requests diverge from our required standards of ethical conduct. So, it is wise for attorneys to inform clients, at the inception of an engagement, that we are legally bound by a fiduciary duty to undertake our client representations in compliance with our disciplinary rules and ethical standards, and that that duty may require us to decline courses of action proposed by our clients or to suggest alternative pathways forward in our legal matters.

As a reminder, when we are grappling with our ethical obligations in those instances where our dual duties appear to diverge, the State Bar offers an ethics helpline (800-532-3947) with staff attorneys ready to provide guidance and answer questions about professional obligations. The State Bar offers additional ethics resources online at texasbar.com/ethics.

So, what ended up happening in my products liability case? When we subpoenaed the plaintiff’s treating physician and obtained the medical records relating to the plaintiff’s initial diagnosis and treatment, we discovered that they were dated two weeks before his seat broke. The fall, if the plaintiff fell at all, didn’t cause his injuries. The case quickly went away after this revelation. I have always believed that, in most instances, if you stay true to your moral code, the right result happens. This was one of those instances.

STEVE BENESH
President, 2024-2025
State Bar of Texas