State Bar of Texas Rules Vote • April 2024

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The Proposed Rules Explained

Members and former members of the Committee on Disciplinary Rules and Referenda weigh in on the history, process, and substance of the disciplinary rule changes under consideration.

The Committee on Disciplinary Rules and Referenda consists of M. Lewis Kinard (Chair), Timothy D. Belton, Amy Bresnen, Scott Brumley, Robert Denby, Hon. Phyllis Martinez Gonzalez, Jennifer Hasley, April Lucas, and Karen Nicholson. To learn more about The Committee On Disciplinary Rules And Referenda, go to


Written by M. Lewis Kinard

From 1984 to 1988, Texas developed its own version of the American Bar Association’s 1983 Model Rules of Professional Conduct. The next significant changes were adopted six years later, in 1994. Another 10 years passed before more changes were adopted in 2004. The next effort to make significant changes failed in 2011.

When the Texas Legislature created a structure and standard process for making changes to the Texas Disciplinary Rules of Professional Conduct and Texas Rules of Disciplinary Procedure in 2017, it was an effort to turn the unusual into the routine. Texas should not go six or more years between every referendum to keep up with the changing aspects of our profession.

Just three years after we voted to make the first changes since 2004, there are now a full dozen proposed changes that the Texas Committee on Disciplinary Rules and Referenda, or CDRR, submitted to the State Bar of Texas Board of Directors, which then petitioned the Supreme Court of Texas to direct the bar to conduct a referendum for Texas lawyers to vote on the proposals.

The summaries in this issue explain the “whats” and “whys” for each proposal. My goal is to get each of you into the “how” part. And that, fortunately, is easy enough: Read the proposed changes and vote on each one, either on paper or online.

You are all part of the process. Every vote matters, and every referendum cycle helps us all keep our rules in line with the changing world in which we practice. Please vote!

Headshot of M. Lewis KinardM. LEWIS KINARD is executive vice president, general counsel, and assistant corporate secretary for the American Heart Association in Dallas. He was the last chair of the State Bar of Texas Committee on Disciplinary Rules and Professional Responsibility and served on that committee for seven years. Kinard has over 30 years of legal practice in a range of substantive areas, is licensed to practice law in Texas and Arkansas, and formerly held a “single client” license in Colorado.


Proposed Rule 1.00: Terminology

Written by Vincent R. Johnson

Note: This article addresses the rule proposal appearing as ballot item A.

Five new definitional sections have been added to the Terminology section to address the meaning of: “Confirmed in writing,” “Informed consent,” ”Represent,” “Screened,”
“Writing,” and related terms.

Fairness demands that the disciplinary rules must be applied in a manner that is clear and consistent. In furtherance of these objectives, proposed Rule 1.00
(Terminology) defines important terms that recur throughout the rules. Most definitions deal with a single term, but others deal with multiple related terms. See, e.g., proposed Rule 1.00 discussing “Represent,” “Represents,” and “Representation.” Sixteen of the definitions simply reposition and number, without substantive change, material that now appears in an unnumbered “Terminology” section near the beginning of the present rules. These definitions are now found in sections (a)-(e), (g)-(h), (k)-(p), (r), and (t)-(u).

Another current definition and comment, dealing with fraud, has been amended to make clear that negligent misrepresentation is not sufficient to constitute fraud, but that silence can constitute fraud if there is a duty to speak and intent to mislead.

Five new definitions include “confirmed in writing,” “informed consent,” representation,” “screened,” and “writing,” which is terminology now well established in the law of legal ethics. The definition of “informed consent” is particularly important because that terminology is already used in the present Texas rules dealing with consent to conflicts of interest. See, e.g., Rule 1.01 (Competence) and Rule 3.08, (Lawyer as Witness).

These definitions will help to ensure that lawyers will have clear notice of what the rules require. The numbering of the rule and its subsections will make it easier to cite and discuss particular provisions.

Proposed Rule 1.09: Conflict of Interest: Former Client and Proposed Rule 1.10: Imputation of Conflicts of Interest: General Rule

Written by Vincent R. Johnson

Note: This article addresses the rule proposals appearing as ballot items C and D.

The current versions of Rules 1.09 and 1.10 raise uncertainties related to former client conflicts of interest and the movement of lawyers between law firms. To resolve those issues, the Committee on Disciplinary Rules and Referenda, or CDRR, recommends deleting the current version of Rule 1.09 and substituting American Bar Association Model Rules 1.9 (Duties to Former Clients) and 1.10 (Imputation of Conflicts of Interest: General Rule), with minor modifications.

Notably, proposed Rule 1.10 endorses the use of screening to manage former client conflicts of interest arising under proposed Rule 1.09. These changes will lighten the burden that lawyers must shoulder in managing conflicts of interest, while at the same time focusing on the important duties of continuing confidentiality that lawyers owe former clients.

Presently, in Texas, the use of screening is limited to conflicts occurring in specific contexts—in particular, paralegals and legal secretaries, certain former public officials and public employees, adjudicatory officials and law clerks to adjudicatory officials, law student interns, and (under proposed Rule 1.18) prospective clients.

Under proposed Rule 1.09, the basic test for determining whether there is a former client conflict of interest—namely, whether a new matter is the “same” or “substantially related” to a prior matter handled by the lawyer—does not change.

Additionally, when a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless a lawyer remaining in the firm has material information protected by the rules governing confidentiality.

Finally, in new language that tracks the model rules, screening would also be a viable means for resolving conflicts of interest arising under Rule 1.06 or 1.09, if the disqualification “prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.” See proposed Rule 1.10(a).

Under this proposal, current Rule 1.10 and subsequent current or proposed rules in part 1 of the disciplinary rules would be retained and renumbered beginning with Rule 1.11.

Headshot of Vincent R. JohnsonVINCENT R. JOHNSON is the Katherine A. Ryan Distinguished Chair for Global, Comparative, and International Law at St. Mary’s University.


Proposed Rule 1.08(A): Conflict of Interest: Prohibited Transactions

Written by Claude E. Ducloux

Note: This article addresses the rule proposal appearing as ballot item B.

The bedrock principle of the client-lawyer relationship is the fiduciary duty owed to the client to assure absolute fairness. This duty often becomes unclear when the lawyer engages in any transaction that involves doing business with the client, thereby acquiring some ownership interest or pecuniary interest adverse to the client. Under the existing rule, a lawyer could simply testify that “the deal” existed and that the client waived disclosure. Circumstantial and ambiguous evidence could suggest agreement and waiver. That uncertainty is now removed. This proposal fills those loopholes in existing rule 1.08(a) and clarifies the logical disclosure steps a lawyer must take to ensure that the client fully understands that the client is advised in writing to seek the advice of an independent lawyer and that the client finally confirms his assent to the terms in writing. No longer will the court have to consider “swearing matches” between the lawyer and client. Similar rule improvements have been adopted in other jurisdictions and have removed any doubts regarding the steps that must be taken when doing business with a client. Importantly, the proposed comments that explain this rule also have exemptions for purely commercial transactions that are similar to client transactions with the public generally and give lawyers greater guidance on how and what to disclose.

Proposed Rule 8.05: Jurisdiction

Written By Claude E. Ducloux

Note: This article addresses the rule proposal appearing as ballot item J.
This rule change is both a clarification and a modernization. Many lawyers are now licensed in multiple jurisdictions and often mistakenly believe that only their state of licensure may prosecute conduct that violates their disciplinary rules. Because so many out-of-state lawyers are now practicing in Texas either in pro hac vice status or as unlicensed associates of Texas firms pending their admission to the Texas bar, we needed this rule clarification. Simply stated, the state of Texas may prosecute misconduct represented by alleged disciplinary rule violations: (a) which is committed by Texas lawyers in Texas and (b) by a lawyer not licensed in Texas but who provides or offers legal services here. Further, this clarifies that both Texas lawyers and non-Texas lawyers may be subject to disciplinary action in Texas and another jurisdiction for the same conduct. Examples might include improper solicitation or advertising, filing false documents, as well as conviction or deferred adjudication for crimes falling under a state’s rules of disciplinary procedure. In summary, this rule clarifies that misconduct may potentially be prosecuted in the jurisdiction of licensure, and/or occurrence.

Proposed Rule 8.06: Choice of Law

Written by Claude E. Ducloux

Note: This article addresses the rule proposal appearing as ballot item K.

This proposed change to Rule 8.06 works hand-in-hand with Rule 8.05, acknowledging that many lawyers practice in multiple jurisdictions. The question has always been (by way of hypothetical example): If an Oklahoma lawyer commits misconduct in Texas, should the lawyer’s conduct be subject primarily to his home state, or the venue where the alleged misconduct occurred? This rule addresses the answer to those questions for any misconduct occurring here, as well as misconduct by a Texas licensee occurring outside the state of Texas. The rule clarifies that when Texas exercises disciplinary authority for conduct occurring before a court or tribunal, Texas will use the rules of the jurisdiction where that court or tribunal sits, unless that state’s rule provides otherwise (i.e designating that an out-of-state lawyer’s misconduct should be reviewed by the disciplinary rules of that lawyer’s home state). This rule expresses those clarifications in two subparts (a) and (b).

Subpart (a) of Rule 8.06 considers conduct by both Texas and foreign licensees. It provides that Texas will apply the rules of the jurisdiction where the misconduct occurred, or the rules of the jurisdiction where “the predominant effect of the conduct” occurs. Because of that new “predominant effect” analysis, this rule also gives Texas lawyers this defense and protection: Lawyers may not be subject to discipline if the lawyer reasonably believes his conduct conformed to the rules of the jurisdiction where the predominant effect of his conduct occurred.

Subpart (b) of Rule 8.06 applies solely to Texas licensees. In two subsections, the rule provides that (1) an advertisement disseminated by a Texas lawyer in another state is still subject to review under Texas advertising rules if the purpose of the ad is intended to reach prospective clients in Texas and secure employment in the state of Texas. Subsection (2) promotes the same analysis for written solicitations—even if mailed from another state, it must comply with Texas advertising rules if the purpose is to obtain clients or employment to be performed in Texas.

I see both Rules 8.05 and 8.06 as modern updates and totally consistent with the purposes of ensuring that lawyers securing employment to be performed in Texas do not gain an unfair advantage in Texas by soliciting from venues with weak advertising rules. Further, they secure defenses and protections for Texas lawyers when the lawyer reasonably believes his conduct conforms to the jurisdiction where the predominant effect of his conduct occurs.

Proposed Rule 13.05: Termination of Custodianship

Written by Claude E. Ducloux

Note: This article addresses the rule proposal appearing as ballot item L.

This is not a disciplinary rule but a new and helpful rule of disciplinary procedure. It continues to craft the idea of “custodianship” as a tool to assist in closing down a lawyer’s practice.

For almost 30 years, when a lawyer was unable to continue practice through illness or death prior to having any chance to shut down the practice, lawyers in that community could petition the district court for appointment of one or more “custodians” to wind up that lawyer’s practice. The protection afforded by such appointment was what I called “Good Samaritan” protection. Custodians cannot be sued for actions occurring during their service except for “intentional misconduct or gross negligence” (TRDP 13.03). The theory was that a custodian undertaking the often harried, messy, and thankless job of closing down a practice should not be worried about being sued for those efforts. So, why not give lawyers an additional voluntary option to create those custodianships
(rather than by court application) and save on court costs? Thus, in the referendum of 2021, the lawyers of Texas approved a new Rule 13.04, allowing the voluntary, non-judicial appointment of a custodian, and has made such a process easily available on the State Bar of Texas website. As I urge in my CLEs, there is now no reason not to have appointed a custodian, whether you are 25 years old or 75 years old.
This new proposed Rule 13.05 is the natural follow up to 13.04—it explains when and how a custodianship shall terminate. In three easily understood sections, proposed Rule 13.05 explains that a custodianship ends:

  • when all the active files and property of the lawyer have been properly distributed to appropriate receivers (such as attorneys taking over those cases), or the client’s authorized (or appointed) representative;

  • or when the lawyer returns to practice prior to completion of the custodianship, with appropriate competence to conduct such representation.

Now, please understand that the primary purpose for custodianship is to close a practice, not continue the lawyer’s practice during a period of disability or convalescence. Although attention must be given to active files, the comments to Rule 13.04 state that a custodian who assumes the representation of any files is actually practicing law, and his/her custodianship immediately ends. So, I do not see that
“custodianship” will be often used in any case where it is likely the lawyer may “resume” practice. But the rule contemplates that such resumption may occur and provides that if there is a question about the competency of the lawyer whose practice has been turned over to custodianship, either the custodian or the attorney appointing the custodian who is attempting to return to practice may petition the court for the court’s evaluation of the issue.

Finally, if closing the custodianship is only held up by the inability to locate clients or questions about the distribution of unclaimed property (including funds in IOLTA accounts), the custodian also has the right to petition the court for an order of disposition of those matters.

This rule is a needed explanation and clarification of the custodian’s role, and the rule gives custodians, who are often doing a difficult job, additional guidance and tools to wind up their duties.

Headshot of CLAUDE E. DUCLOUXCLAUDE E. DUCLOUX is certified in both civil trial (1984) and civil appellate law (1987) by the Texas Board of Legal Specialization; licensed in Texas, Colorado, and California; and speaks regularly on legal ethics, law office management, and trial-related topics. He is a former president of the Austin Bar Association and former chair of the Texas Board of Legal Texas Center for Legal Ethics.


Proposed Rule 1.18: Duties to Prospective Client

Written by Amy Bresnen

Note: This article addresses the rule proposal appearing as ballot item E.

Texas is one of only three states that have not adopted any disciplinary rule on duties to prospective clients. Yet questions about duties owed by Texas lawyers to prospective clients have long confronted members of this bar. Proposed Texas Disciplinary Rules of Professional Conduct Rule 1.18 defines a prospective client as someone who consults with a lawyer about possibly forming a client-lawyer relationship, but it does not include someone whose intent is just to disqualify the lawyer or some other purpose not involving seeking representation. Nor does a person’s mere response to general advertising by itself give rise to a clientlawyer relationship. This definition covers concerns raised in public comments about these particular scenarios. Where a client-lawyer relationship does not result, the lawyer cannot use or reveal any information learned from the prospective client, except as permitted in the case of an actual former client, or if the information becomes generally known.

The lawyer also cannot represent a client adverse to the prospective client in the same or related matter if the lawyer received significantly harmful information from the prospective client unless both the affected client and prospective client consent in writing or the lawyer took reasonable measures to avoid acquiring more disqualifying information than necessary and is timely screened from the matter. Written notice of screening must be promptly given to the prospective client. Other lawyers in the same firm are also disqualified unless such conditions are met.

Overall, the proposed rule and its comments reflect the notion that prospective clients deserve some but not all protections afforded to actual clients, since the relationship, by its nature, is more limited.

Proposed Rule 5.05: Unauthorized Practice of Law; Remote Practice of Law

Written by Amy Bresnen

Note: This article addresses the rule proposal appearing as ballot item I.

Current Texas Disciplinary Rules of Professional Conduct Rule 5.05 offers little guidance on whether multijurisdictional or remote practice of law are permissible. The pandemic highlighted this ambiguity as lawyers began working remotely for convenience and mobility. The proposed amendments recognize this new environment and offer enhanced guidance.

The proposed amendments are additions to current Rule 5.05. The additions state that, unless authorized by other law, a lawyer cannot practice Texas law unless admitted to practice in Texas or the services are provided solely to the lawyer’s employer and pro hac vice admission is not required. A person may not hold out to the public that he or she is a Texas lawyer unless he or she is admitted to practice in this jurisdiction.

A lawyer not admitted to practice law in Texas, but who is authorized to practice law in another jurisdiction, may practice law from a temporary or permanent residence or other location in this state if three conditions are met. First, the lawyer may not represent that he or she is authorized to practice in Texas. Second, the lawyer may not solicit or accept clients on matters requiring advice primarily regarding Texas or local law. Third, if the lawyer knows or should know of a mistaken belief the lawyer is authorized to practice in Texas, corrective measures must be taken.

The revised comments to Rule 5.05: Recognize that the definition of the “practice of law” is broad; clarify how a lawyer may delegate functions to nonlawyers; and offer guidance on providing legal advice to pro se litigants and nonlawyers whose work requires knowledge of legal principles.

Headshot of CLAUDE E. DUCLOUXAMY BRESNEN is an attorney and lobbyist at BresnenAssociates. She previously worked in both the Texas House of Representatives and Senate and now represents businesses and associations at the Texas Capitol. Bresnen has served on the CDRR since 2018.


Proposed Rule 3.09: Special Responsibilities Of A Prosecutor

Written By Scott Brumley

Note: This article addresses the rule proposal appearing as ballot item F.

Article 2.01 of the Texas Code of Criminal Procedure elegantly insists that “it shall be the primary duty of all prosecuting attorneys . . . not to convict, but to see that justice is done.”1 Rule 3.09, titled “Special Responsibilities of a Prosecutor,” builds upon that directive. It is unique in its singular focus upon a particular category of lawyer, as opposed to a particular class of conduct. As such, the current rule imposes a number of duties upon prosecutors corresponding to constitutional protections enjoyed by criminal defendants. Included within those responsibilities is the well-known requirement to disclose exculpatory or mitigating evidence to the defense, which currently is found in paragraph (d). The proposed amendment leaves the provisions of the current rule unchanged but adds new paragraphs (f), (g), and (h) to augment prosecutors’ obligations arising out of paragraph (d).

Under paragraph (d), a prosecutor must “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor,” unless a court rules otherwise. But there is a gap where actual innocence, often asserted and litigated long after a conviction, is at issue. Based on the express language of paragraph (d), the current rule doesn’t obligate a prosecutor to make any disclosures in a post-trial context.2 Consequently, there currently exists no disciplinary consequence under Rule 3.09 for a prosecutor who, after trial, fails to disclose evidence indicating that a convicted defendant is actually innocent.

In seeking to address this omission, initial consideration was given to directly adopting paragraphs (g) and (h) from Model Rule 3.8 of the American Bar Association’s Model Rules of Professional Conduct. Model Rule 3.8(g) requires a prosecutor who knows of “new, credible and material evidence creating a reasonable likelihood” that a convicted defendant is actually innocent to disclose the evidence, and if the conviction occurred in the prosecutor’s jurisdiction, to undertake or cause further investigation to determine whether the defendant is actually innocent. Further, if the evidence of innocence is “clear and convincing,” paragraph (h) of the model rule requires the prosecutor to “seek to remedy the conviction.” Although some voiced strong support for wholesale adoption of the model rule provisions, the investigation and remedy duties in those paragraphs prompted concerns about forcing prosecutors into situations clouded by conflicts of interest. After extensive input from prosecutors, defense lawyers, academicians, exonerees, and other interested parties over the course of nearly two years, then, a more modest amendment was crafted.

Similar to the model rule, paragraph (f ) requires a prosecutor who knows of new and credible information creating a reasonable likelihood that a convicted defendant is actually innocent to disclose the information promptly. Whether the prosecutor faces further obligations depends upon whether the conviction occurred within or outside the prosecutor’s jurisdiction. For purposes of paragraph (f), “jurisdiction” relates more to status than to geography. Paragraph (h) defines it as the legal authority to represent the government in criminal matters before the convicting court. If the conviction occurred in the prosecutor’s jurisdiction, the prosecutor is required to disclose the information to the defendant, the defendant’s lawyer (or, if the defendant is not represented, to the indigent defense appointing authority in the jurisdiction), the court of conviction, and “a statewide entity that examines and litigates claims of actual innocence.”3 Presently, that entity would be the Innocence Project of Texas. Further, if the defendant is not represented by counsel, or that status cannot be determined, the prosecutor must move the convicting court to determine whether the defendant is indigent and entitled to appointed counsel. Additionally, the prosecutor is required to cooperate with defense counsel by providing all known new information “as required by the relevant law governing criminal discovery.”4

On the other hand, if the conviction occurred outside the prosecutor’s jurisdiction, the prosecutor simply is obliged to disclose the information to the appropriate prosecutor in the jurisdiction where the conviction occurred. For example, if the conviction was for a felony, the prosecutor must disclose to the district attorney representing the state in the court of conviction. If a state prosecutor learns of the requisite actual innocence information concerning a federal conviction, the prosecutor must disclose to the U.S. attorney for the state and district in which the conviction was obtained.

Fears that the new provisions could be used as a tactical weapon in litigation are addressed in paragraph (g). Specifically, what happens if a prosecutor carefully analyzes information and concludes that it is not new, it is not credible, or it does not create a reasonable likelihood of actual innocence? Is the rule violated if the information is not disclosed anyway? So long as the determination is made “in good faith,” paragraph (g) says “no.” And that holds true even if the prosecutor’s conclusion is subsequently determined to be erroneous.

While there was debate over various aspects of the proposal, there is strong support among prosecutors and defense lawyers that the disclosure obligation is necessary and appropriate. Putting exonerating information in the hands of the defense and the court is, after all, the critical catalyst to rectifying a wrongful conviction. To that end, the proposal is a useful step toward assuring that justice, in fact, is done.

1. Tex. Code Crim. Proc. Ann. art. 2.01 (West 2005).
2. Comm’n for Lawyer Discipline v. Hanna, 513 S.W.3d 175, 183 (Tex. App.—Houston [14th Dist.] 2016, no pet.); but cf. Tex. Code Crim. Proc. Ann. art. 39.14(h), (k) (West Supp. 2023) (requiring state to disclose to defendant any exculpatory, impeachment, or mitigating document, item, or information in possession, custody, or control of state tending to negate guilt of accused or tending to reduce punishment for offense charged; extending such disclosure obligation to “any time before, during, or after trial”).
3. Tex. R. Disc. Prof'l. Cond. 3.09.
4. Id.


Headshot of Scott BrumleyScott Brumley is the county attorney for Potter County.


Proposed Rule 5.01: Responsibilities of A Partner or Supervisory Lawyer

Written by Robert Denby

Note: This article addresses the rule proposal appearing as ballot item H.

Texas is one of only three states that does not require lawyers or law firms to take steps to ensure that everyone in the firm follows the ethical rules. Current Texas Disciplinary Rules of Professional Conduct, or TDRPC, Rule 5.01 imposes no such obligation; rather, it provides that Texas lawyers are responsible for the misconduct of another lawyer only if they are managers or supervisors and (a) order, encourage, or knowingly permit the misconduct; or (b) know about the misconduct and knowingly fail to fix or mitigate it.

Proposed Rule 5.01 would change the existing rule by providing that certain lawyers within a firm have an affirmative duty to supervise other lawyers under two circumstances. First, the proposed rule would require lawyers who manage a law firm to make reasonable efforts to see that the firm has firmwide policies and procedures in place to ensure that all of its lawyers follow the ethical rules. Second, it provides that a lawyer who directly supervises another lawyer must make reasonable efforts to ensure that that lawyer follows the rules as well. The proposed duty to ensure that a firm has appropriate policies and procedures would apply only to those lawyers who are in firm management. Unlike American Bar Association Model Rule 5.1, proposed Rule
5.01 would not impose such a duty on all partners in a firm, as some partners and supervising lawyers may not have actual managerial responsibility.

The proposed comments offer useful guidance on how the rule should be applied in practice.

Headshot of Robert DenbyROBERT DENBY
is a member of Vinson & Elkins’ Office of the General Counsel and a leading authority on legal ethics, professional responsibility, and risk management for law firms. Prior to joining V&E, he spent 16 years at the Attorneys’ Liability Assurance Society, or ALAS, the premier malpractice carrier for large law firms, including seven years as the head of ALAS’ industry-leading Loss Prevention group.


[These comments are by M. Lewis Kinard, Amy Bresnen, Scott Brumley, and Robert Denby, members of the Committee on Disciplinary Rules and Referenda, and Vincent R. Johnson and Claude E. Ducloux, former members of the Committee on Disciplinary Rules and Referenda, and are not the official comments of that committee.]

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