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ETHICS DO’S AND DON’TS FOR THE DIRT LAWYER
SUSAN C. COX
HONORABLE KAREN GREN JOHNSON
Jones Day
2727 N. Harwood Street
Dallas, Texas 75201
Co-Author
CATHERINE WEIR, Dallas
Jones Day
State Bar of Texas
33rd
ANNUAL
ADVANCED REAL ESTATE LAW
July 7-9, 2011
San Antonio
CHAPTER 24
SUSAN C. COX Partner
Areas of Focus Real Estate
Real Estate Finance
Real Estate Funds
Real Estate Capital Markets
Distressed Real Estate Transactions
Honors & Distinctions
Recommended for real estate in The Legal
500 US (2010)
Languages Spanish
Education The University of Texas at Austin (J.D. 1995; M.P. Affairs 1995, Lyndon B. Johnson School of Public Affairs; Phi Kappa Phi); Austin College (B.A. with concentration in Political Science 1991; Hatton W. Sumners Scholar)
Bar Admissions Georgia and Texas
Dallas 1.214.969.4586 1.214.969.5100 (F)
Susan Cox practices in the area of general real estate law with an emphasis on real estate finance, workouts and restructurings, acquisitions and dispositions of real estate and nonperforming loan portfolios, and international investments. She has provided counsel to clients in U.S. domestic transactions as well as a number of real estate transactions in Europe and Asia.
Representative transactions include: Morgan Stanley's financing of the $6.5 billion buyout of Crescent Real Estate Equities Company and the $525 million acquisition and financing of 11,000 homesites from Lennar Corp.; the workout of an over $2 billion acquisition loan as well as smaller loans ranging from $20 million to $500 million; the financing by Morgan Stanley, Onex Real Estate, and Sawyer Realty of the $1.5 billion buyout of Town and Country Trust, the subsequent sales of more than $1 billion of the corresponding Town and Country assets, and the refinancing of the remainder of the Town and Country portfolio; and the $171 million initial public offering of Thomas Properties Group, Inc.
Susan is a member of the State Bar of Texas, the State Bar of Georgia, the Dallas Bar, and CREW Dallas. Susan is a recent graduate of the Dallas Regional Chamber of Commerce "Leadership Dallas" program for 2010-2011.
Susan is a founding member of CREW Dallas' Speaker Bureau. She has served as a panelist for certain Texas Bar programs as well as a guest lecturer to the SMU School of Law topical real estate class.
KAREN GREN JOHNSON Partner
Areas of Focus Product Liability & Tort Litigation
Trial Practice
Class Action & Multidistrict Product Liability Litigation
Consumer Goods Product Liability Litigation
Honors & Distinctions Dallas Asian American Bar Association Lifetime Achievement Award; Dallas Women Lawyers Association Louise Raggio Award for "significant contributions toward advancement of women in the legal profession"; National Asian Pacific American Bar Association Trailblazer Award; State Bar of Texas Justice Chew Award recognizing "exemplary
professionalism and accomplishments"; D
Magazine's "Best Women Lawyers 2010"
and "Best Lawyers 2011", Texas
Monthly's "2011 Texas Super Lawyers"
Education Cornell University (J.D. 1982); Rice University (B.A. in Legal Studies and Political Science 1979)
Bar Admissions Texas
Government Service Judge, 95th Civil District Court, Dallas County, Texas (2001-2008), Presiding Judge (2007)
Dallas 1.214.969.2929 1.214.969.5100 (F)
As a former Presiding Judge of the Dallas County Civil District Judges, Karen Gren Johnson has extensive trial experience as an advocate and as a judge. Karen has represented international product manufacturers in multidistrict litigation and served as lead lawyer in multimillion dollar business disputes. Karen joined Jones Day after eight years of judicial service as a state district judge where she presided over thousands of civil cases, including more than 100 cases tried to jury verdict. During Karen's time on the bench, the Supreme Court of Texas appointed her as a multidistrict litigation judge.
Before taking the bench, Karen was in private practice for 18 years, focusing on complex tort, product liability, business, and other civil litigation in state and federal courts. She handled first-chair responsibilities in individual cases and coordinated with in-house counsel on litigation management at the local through national levels. Her first-chair case responsibilities included all aspects of case development, from investigation through trial. Karen has served on multiple bar seminar planning committees and frequently speaks on advanced litigation topics, including voir dire, discovery, expert witnesses, judge and jury persuasion, trial tactics, and ethics.
Karen has served on many nonprofit boards, including Camp John Marc, Dallas Women's Foundation, Victims Outreach, and Literacy Instruction for Texas. She was co-chair of Attorneys Serving the Community, and she co-chaired the National Asian Pacific American Bar Association's Annual Convention in 2004. She has served on the executive board of the Cornell Law Association and on the board of directors of the Association of Rice Alumni.
Ethics Do’s And Don’ts For The Dirt Lawyer Chapter 24
i
TABLE OF CONTENTS
I. SCOPE .............................................................................................................................................................. 1
II. ENGAGEMENT LETTERS ............................................................................................................................. 1
III. CLIENT COMMUNICATIONS ...................................................................................................................... 3
IV. SAFE GUARDING OF CLIENT PROPERTY ................................................................................................ 3
V. WEBSITES ....................................................................................................................................................... 4
VI. DUAL PRACTICE ........................................................................................................................................... 6
VII. DOCUMENT RETENTION AND DESTRUCTION POLICIES ................................................................... 7
APPENDIX A-1 SAMPLE ENGAGEMENT LETTER ............................................................................................... 9
APPENDIX A-2 SAMPLE “I‟M NOT YOUR LAWYER LETTER ......................................................................... 12
APPENDIX B-1 TDPRC RULES ............................................................................................................................... 13
APPENDIX B-2 SAMPLE DISCLAIMERS............................................................................................................... 15
APPENDIX C SAMPLE LETTER - UPON CLOSE OF MATTER .......................................................................... 16
Ethics Do’s And Don’ts For The Dirt Lawyer Chapter 24
1
ETHICS DO’S AND DON’TS FOR THE
DIRT LAWYER
I. SCOPE
The State Bar of Texas Commission for Lawyer
Discipline collects data on grievances filed against
attorneys. Commission records indicate that
approximately 7,233 grievances were filed against Texas
lawyers in the May 2009 through June 2010 reporting
period from approximately 86,500 active attorneys in
Texas. 2009-2010 STATE BAR OF TEXAS COMM. FOR
LAWYER DISCIPLINE ANN. REP. 16., 1994-2010 issued by
the Office of the Chief Disciplinary Counsel, State Bar of
Texas. Of those grievances, only 108 were classified as
related to the real estate area of law. Id. While most
grievances filed covered criminal law, family law and
personal injury practice areas, the most common
allegations across all practice areas were neglect, failure
to communicate and complaints about the termination or
withdrawal of representation – all areas that have
application to real estate lawyers. The scope of this paper
covers the ethical traps, the do‟s and don‟ts, that real
estate transactional lawyers most often see in their day to
day practice. It also deals with general practice do‟s and
don‟ts that real estate transactional lawyers will face in
running a practice.
II. ENGAGEMENT LETTERS
DON’T represent clients without comprehensive
engagement letters that clarify the attorney-client
relationship and the nature and scope of the services
to be provided.
The first thing any transactional lawyer needs to do
when engaged by a new or repeat client is to prepare and
have executed a comprehensive engagement letter.
Conflicts of interests, disputes over attorneys fees and
legal malpractice claims are, unfortunately, part of the
landscape of practicing law in this day and age. These
are also the cause of much of the general public‟s
dissatisfaction with our profession. Lawyers can avoid
many of these problems with carefully and thoroughly
drafted client engagement letters.
Engagement letters should be clear, understandable
by the client, and in compliance with the Texas
Disciplinary Rules of Professional Conduct (“TDRPC”).
An engagement letter should anticipate problems that are
likely to arise between a lawyer and a client and prevent
them by providing clear answers as to the agreement
among the parties. At a minimum, engagement letters
should address the following:
The Identity of the Client. In certain situations,
it is very important to clarify who is (and,
perhaps most importantly, who is not) the client.
For instance, lawyers representing businesses
should make clear that the company‟s
shareholders, officers, directors, members
and/or affiliates are not their client. Likewise,
prior to undertaking representation of a joint
venture, which is common in the real estate
transactional context, a lawyer should clearly
identify who the client is – the joint venture or
one of the members of the joint venture. For
joint venture representation, it may be helpful
to have each constituent joint venture partner
execute an engagement letter that states that the
lawyer is representing the joint venture and, if
applicable, allowing the same lawyer to
represent a constituent joint venture partner in
joint venture-related matters. In such a
circumstance, the engagement letter should also
specify the rights and obligations of the lawyer
representing the joint venture in the event that
disputes arise between the joint venture partners.
The joint venture member that is not
represented may be copied on the engagement
letter or a separate letter may be provided to the
member that is not represented, a so-called “I‟m
Not Your Lawyer” letter, clearly advising the
non-client of its non-client status. Clearly
identifying the client is also important in
situations where a third party is paying the legal
bills.
The Identity of the Lawyer. Just as important
as identifying the client is delineating who will
be providing the legal services. Clients often
engage lawyers with the expectation that such
lawyer will handle his or her matter. If an
associate does much or all of the work and
things do not turn out as the client expected,
conflicts with clients can arise. For this reason,
it is prudent to include a provision in an
engagement letter stating the lawyer‟s right to
allocate work to different lawyers and non-
lawyer personnel who are qualified to handle
such work. The inclusion of such a provision is
especially important when representing an
unsophisticated client who may expect that the
lawyer will personally handle the entire
representation him or herself.
The Scope of the Representation. While basic,
explaining the scope of the representation is one
element of the engagement letter that is often
overlooked, or for which sufficient time and
attention is not provided. In all circumstances,
the scope is one of those provisions in the
engagement letter that is “in the blanks” and
must be filled in by the lawyer as it is unique to
each transaction. It is also a provision that is
often "duped" from prior engagement letters
Ethics Do’s And Don’ts For The Dirt Lawyer Chapter 24
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sent to existing clients with little additional
thought as to the similarities and differences to
the prior and current transaction. Disputes
between clients and lawyers arise when the
results of a transaction do not turn out as
expected. If the scope of the representation is
not clearly delineated in the engagement letter,
the lawyer may be held responsible for the
disappointing results even if the client and
lawyer had agreed that the lawyer would not be
responsible for the services that achieved the
unfavorable results. In Texas, a lawyer may
limit the scope (as well as the objective and
general methods) of the representation as long
as the client consents to the limitation and the
representation, as so limited, does not violate
any disciplinary rules. TEX. DISCIPLINARY R.
PROF‟L CONDUCT R.1.02(b) & cmt. 5. A
lawyer may, for example, agree to represent a
client in the negotiation and acquisition of
property but not the financing or post-
acquisition assistance. Comment 5 to TDRPC
Rule 1.02(b) provides that “the client may not
be asked to agree to representation so limited in
scope as to violate Rule 1.01 (Competent and
Diligent Representation), or to surrender the
right to terminate the lawyer‟s services or the
right to settle or continue litigation that the
lawyer might wish to handle differently.” TEX.
DISCIPLINARY R. PROF‟L CONDUCT R. 1.02(b)
cmt. 5. Limiting the scope of the representation
can serve the interests of both lawyer and client.
For example, by excluding certain tasks from
the scope of the lawyer‟s services, a lawyer
may be able to undertake a representation that
otherwise would have involved a conflict of
interest. Also, unbundling services that a
lawyer provides may lower the cost of legal
services making them more readily available
and affordable to clients.
The Fee That Will be Charged. Perhaps one of
the most common causes of disputes between
lawyers and their clients relates to attorneys‟
fees, costs and expenses. A lawyer can
minimize such disputes by making a concerted
effort at the outset of the representation to
clearly articulate in the engagement letter: the
lawyers‟ compensation arrangement, how and
when the client will be billed, what the client‟s
obligations are with respect to payment and
what rights the lawyer has in the event of
nonpayment. Rule 1.04(c) of the TDRPC
provides that “[w]hen the lawyer has not
regularly represented the client, the basis or rate
of the fee shall be communicated to the client,
preferably in writing, before or within a
reasonable time after commencing the
representation.” TEX. DISCIPLINARY R. PROF‟L
CONDUCT R. 1.04(c). To remove any doubt,
the fee, or the basis for the fee, should be
communicated to the client at the outset of the
representation in an engagement letter signed
by the client and the lawyer. Though the
TDRPC does not (except for criminal cases)
specify the type of fee agreements that a lawyer
may or may not use, Rule 1.04 of the TDRPC
imposes certain limitations on the fee
agreements that lawyers may enter into as well
as specific requirements concerning particular
types of fees. TEX. DISCIPLINARY R. PROF‟L
CONDUCT R. 1.04. Both of these topics are
beyond the scope of this paper.
Additional Provisions. Additional provisions
that are often and more increasingly included in
engagement letters are: (1) consents to
conflicts and advance waivers, (2)
specifications regarding any client obligations,
and (3) ground rules for file retention.
See Appendix A-1 for a sample engagement letter with
the above-mentioned terms and additional provisions.
See Appendix A-2 for a sample “I‟m not your Lawyer”
letter. There may be other provisions that a lawyer
should include in the engagement letter and the “I‟m not
your Lawyer” letter that are based on the unique facts and
circumstances of the representation or based upon
changes in case law over time. Each lawyer should add
any additional provisions to cover the unique facts and
circumstances of such lawyer‟s matter.
If multiple parties are to be represented, a written
engagement letter is critical. While situations will vary,
the engagement letter for such a circumstance should
include additional provisions that address the
management, sharing and segregating of confidential
information between the parties; fee apportionment and
payment mechanisms; what kinds of decisions will
require client involvement; a conflict waiver; and what
happens if a dispute between the parties occurs.
Finally, it is not only important to prepare and
execute an engagement letter at the start of a new
engagement, but the engagement letter should be clear
and understandable by the client. Lawyers should help
ensure that the client understands the terms of the
engagement letter by reviewing the engagement letter
with the client. Particularly with unsophisticated clients,
it is prudent for the lawyer to go over the engagement
letter with the client orally, summarizing each paragraph
to ensure the client understands the terms of the
engagement letter and to answer any questions the client
has.
Ethics Do’s And Don’ts For The Dirt Lawyer Chapter 24
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III. CLIENT COMMUNICATIONS
DO more than just return phone calls from clients.
During each year of the last decade, the second most
common violation alleged in all grievance claims filed
with the Chief Disciplinary Counsel of the State Bar of
Texas (second only to neglect by attorneys) was failure to
communicate. State Bar of Texas, Attorney Grievance
System Statistics (1994-2010). Grievances alleging
failure to communicate made up 25% of all ethical
grievances filed during the 2009-2010 bar year. 2009-
2010 STATE BAR OF TEXAS COMM. FOR LAWYER
DISCIPLINE ANN. REP. Some argue that attorneys‟
failures to communicate with their clients are among the
greatest causes of popular dissatisfaction with the legal
profession today. Stephen E. Schemenauer, What We’ve
Got Here…Is A Failure…To Communicate: A Statistical
Analysis of the Nation’s Most Common Ethical
Complaint, 30 HAMLINE L. REV. 629, 631 (2007).
The good news is that attorneys can easily avoid
complaints of failure to communicate by (i) recognizing
that communication is a significant problem in an
attorney-client relationship and (ii) knowing the TDRPC
rules regarding client communication and following the
guidelines set forth in the comments to the same.
Rule 1.03 of the TDRPC provides:
(a) A lawyer shall keep a client reasonably
informed about the status of a matter and
promptly comply with reasonable requests for
information.
(b) A lawyer shall explain a matter to the extent
reasonably necessary to permit the client to
make informed decisions regarding the
representation.
TEX. DISCIPLINARY R. PROF‟L CONDUCT R. 1.03.
Thus, Rule 1.03 has three basic components: (i) to
keep the client reasonably informed regarding the status
of representation by volunteering information; (ii) to
promptly comply with reasonable client requests for
information relating to the representation; and (iii) to
reasonably explain the legal matter so that the client can
make informed decisions regarding the representation.
The standard of compliance with all three duties is
reasonableness. Comment 2 to Rule 1.03 provides “[t]he
guiding principle is that the lawyer should reasonably
fulfill client expectations for information consistent with
the duty to act in the client‟s best interests, and the
client‟s overall requirements to the character of the
representation.” TEX. DISCIPLINARY R. PROF‟L
CONDUCT R. 1.03 cmt. 2. Whether a lawyer has acted
reasonably is ordinarily a question of fact. See Michael V.
Bourland & David P. Dunning, Ethical Rules and Texas
Law Practice (April 24, 2003) (presented at the Advanced
Estate Planning Strategies Course April 24-25, 2003).
The most obvious thing a lawyer can do is
communicate with his or her clients on a regular basis.
This means promptly returning phone calls, letters and e-
mails. As Comment 4 to the American Bar Association
Model Rule 1.4 (the counterpart to Rule 1.03 of the
TDRPC) notes, communicating regularly with clients will
minimize clients‟ requests for information concerning the
representation. MODEL R. PROF‟L CONDUCT R. 1.4 cmt.
4. When a client does request information, if the lawyer is
too busy to respond within a reasonable time, the lawyer
or a member of the lawyer‟s staff should acknowledge
receipt of the request and advise the client when a
response may be expected. Id. In keeping with the idea
of delegating communication responsibilities, a lawyer
might also consider setting up a “tickler system,” which
would remind the lawyer when communication with a
client is due. The tickler system could be set up through
a computer e-mail and calendar software application (e.g,
Microsoft Outlook) where reminders are placed in the
lawyer‟s calendar. Lawyers should also ensure that
copies of all documents related to matters are sent to the
client at the same time they are transmitted to the other
party/opposing counsel/lender‟s counsel and should
explain the terms to the client. This should be done with
fee agreements and billing statements as well.
As to the content of communication with clients, the
TDRPC upholds the view that the “client should have
sufficient information to participate intelligently in
decisions concerning the objectives of the representation
and the means by which they are to be pursued to the
extent the client is willing and able to do so.” TEX.
DISCIPLINARY R. PROF‟L CONDUCT R.1.03 cmt. 1.
Accordingly, lawyers negotiating on behalf of a client in
a real estate transaction should provide the clients with
the relevant facts, keep them apprised of communications
with the other party and provide other pertinent
information to allow the client to accept or reject
proposed terms and conditions of the transaction. TDRPC
Rule 1.03 cmt. 1. Lawyers should generally provide
comprehensive advice concerning all possible options,
including the potential risks associated with each option.
Ultimately, lawyers can avoid complaints regarding
failure to communicate by exercising common sense and
understanding that there is no such thing as over-
communication in the client‟s eyes.
IV. SAFE GUARDING OF CLIENT PROPERTY
DO segregate client property and hold it separate
from the lawyer’s own property with the care
required of a professional fiduciary.
While title companies often provide the escrow
services in most real estate transactions, some lawyers
provide escrow services for clients. In addition, real
estate lawyers often hold client funds in connection with
a retainer for future services to be provided by the lawyer.
Ethics Do’s And Don’ts For The Dirt Lawyer Chapter 24
4
In both of these cases, the real estate lawyer is holding
client property. While the failure to properly safeguard
client property represents only a small portion of the
grievances filed with the Commission, lawyers who fail
to follow the applicable TDRPC Rule, Rule 1.14
(Safekeeping Property), face severe sanctions, including
disbarment.
TDRPC Rule 1.14 provides:
(a) A lawyer shall hold funds and other
property belonging in whole or in part to
clients or third persons that are in a
lawyer‟s possession in connection with a
representation separate from the lawyer‟s
own property. Such funds shall be kept in
a separate account, segregated as a trust or
escrow account, maintained in the state
where the lawyer's office is situated, or
elsewhere with the consent of the client or
third person. Complete records of such
account funds and other property shall be
kept by the lawyer and shall be preserved
for a period of five years after termination
of the representation.
(b) Upon receiving funds or other property in
which a client or third person has an
interest, a lawyer shall promptly notify the
client or third person. Except as stated in
this Rule or otherwise permitted by law or
by agreement with the client, a lawyer
shall promptly deliver to the client or third
person any funds or other property that the
client or third person is entitled to receive
and, upon request by the client or third
person, shall promptly render a full
accounting regarding such property.
(c) When in the course of representation a
lawyer is in possession of funds or other
property in which both the lawyer and
another person claim interests, the property
shall be kept separate by the lawyer until
there is an accounting and severance of
their interest. All funds in a trust or
escrow account shall be disbursed only to
those persons entitled to receive them by
virtue of the representation or by law. If a
dispute arises concerning their respective
interests, the portion in dispute shall be
kept separate by the lawyer until the
dispute is resolved, and the undisputed
portion shall be distributed appropriately.
TEX. DISCIPLINARY R. PROF‟L CONDUCT R.1.14.
Key points to the rule include:
Lawyer and client property are to be held
separately in trust or escrow. Funds should be
held in a federally insured checking account or
investment product, such as an interest bearing
account at an investment firm. STATE BAR OF
TEXAS, A LAWYER‟S GUIDE TO CLIENT TRUST
ACCOUNTS (2010)
http://www.texasbar.com/AM/
Template.cfm?Section=Trust_Accounts&Temp
late=/CM/HTMLDisplay.cfm&ContentID=103
05
Funds must be held in trust. The general rule is
“if the funds can reasonably earn interest for the
beneficiary, then they should be placed in an
individual interest-bearing trust account.”
STATE BAR OF TEXAS, A LAWYER‟S GUIDE TO
CLIENT TRUST ACCOUNTS. If the funds
cannot reasonably earn interest for the
beneficiary, then the funds may go into an
IOLTA-type account. In general, funds cannot
reasonably earn interest if the funds are to be
held for a short period of time or are nominal in
amount.
Funds must be held within the state unless the
client consents to funds being held elsewhere.
Complete records of the funds must be
maintained for a period of 5 years. When the
funds are being held as a retainer for legal
services and expenses, funds may be withdrawn
by the lawyer when earned and billed (and
assuming there is no dispute as to services
rendered). Funds so withdrawn should be
deposited into the lawyer‟s separate account.
Lawyers should assure that fees are not
withdrawn directly from the trust account (even
when earned) to pay the lawyer‟s costs and
expenses.
The Chief Disciplinary Counsel‟s Office for the
Commission has developed an online publication entitled
A Lawyer’s Guide to Client Trust Accounts. Since the
penalty for the failure to comply with Rule 1.14 is often
severe, lawyers that will hold client property should
review this helpful publication which can be accessed at
the State Bar website (www.texasbar.com) and by
clicking on “For Lawyers” and then “Resource Guides.”
V. WEBSITES
DO consider ethical obligations when developing
content and features of a lawyer or firm website.
Law firm websites have become a basic tool for
providing information to existing and potential clients.
Websites serve as 24-hour marketing tools by
highlighting the particular qualifications of lawyers or a
law firm, explaining the scope of the legal services they
provide and describing their clientele. The obvious
Ethics Do’s And Don’ts For The Dirt Lawyer Chapter 24
5
benefit of the information provided by a website can
diminish or disappear if the website visitor
misunderstands or is misled by website information or
features. For example, a website visitor might rely on
general legal information to answer a personal legal
question or might assume that direct electronic
communication with a lawyer implies that the lawyer
agrees to preserve the confidentiality of information
disclosed by the website visitor. Lawyers must be careful
to not include misleading information on websites, must
be mindful of the expectations created by the website and
must carefully manage inquiries invited through the
website.
Any information provided about a lawyer on a firm
website, such as (i) biographical information about
lawyers (including educational background, experience,
area of practice and contact information), (ii) information
about the firm, such as its history, experience, areas of
practice and general descriptions of prior engagements
and (iii) more specific information about a lawyer or a
firm‟s former or current clients, matters handled or
results obtained, constitutes a “communication
concerning a lawyer‟s services” and therefore is subject
to the requirements of TDRPC Rule 7.02 as well as the
prohibitions against false and misleading statements in
Rules 8.04(a)(3) (Misconduct) and 4.01(a) (Truthfulness
in Statements to Others). TEX. DISCIPLINARY R. PROF‟L
CONDUCT R. 7.02, 8.04(a)(3), 4.01(a). See Appendix B-
1 for the complete text of these rules. Together these
rules prohibit false, fraudulent or misleading statements
of law or fact. Website communications may not be false
or misleading, or omit facts such that the resulting
statement is materially misleading. To avoid misleading
website readers, information on a website should be
updated on a regular basis. In addition, the informed
consent of clients or former clients must be obtained in
order to identify current or former clients and disclose the
scope of their matters on the website, as required by
TDRPC Rule 1.05. TEX. DISCIPLINARY R. PROF‟L
CONDUCT R. 1.05. Because disclosure of client
identifying information is not being made to carry out the
representation of a client but to promote the lawyer or
law firm, disclosure of client identifying information on a
website is not normally impliedly authorized.
A website on the Internet that describes a lawyer,
law firm, or the legal services rendered by them also
constitutes an advertisement in the public media and is
thus subject to the TDRPC Rules 7.04 (Advertisements in
the Public Media) and 7.07 (Filing Requirements for
Public Advertisements). TEX. DISCIPLINARY R. PROF‟L
CONDUCT R. 7.04, 7.07. For purposes of Part VII of the
TDRPC, “website” means a single or multiple page file,
posted on a computer server, which describes a lawyer or
law firm‟s practice or qualifications, to which public
access is provided through publication of a uniform
resource locator (URL). Though there may be multiple
pages of a website, only the “intended initial access page”
(i.e., the page of the file on which navigational tools are
displayed) are subject to the rules. Under TDRPC Rule
7.04 the intended initial access page of a lawyer or law
firm‟s website must include: (i) the name of the lawyer or
law firm responsible for the content of the site and (i) the
geographic location (city or town) in which the lawyer or
law firm‟s principal office is located. TEX.
DISCIPLINARY R. PROF‟L CONDUCT R. 7.04. In addition,
if areas of law are advertised or claims of special
competence are made on the intended initial access page
or elsewhere on the site, a conspicuous disclaimer
regarding such claims in the language prescribed in
TDRPC Rule 7.04(b) must be displayed. Id. Publication
of a link to a separate page bearing the required
disclaimer or information required by Rule 7.04(b) does
not satisfy the requirements of Rule 7.04 of the TDRPC.
Id. A sample disclaimer is provided in Appendix B-2
below. There may be other revisions that a lawyer should
include in the waivers that are based on the unique facts
and circumstances of the representation or based upon
changes in case law over time.
Unless exempt thereunder, TDRPC Rule 7.07(c)
requires lawyers to submit, no later than its first posting
on the internet, a hard copy of the intended initial access
page of a website along with a fee to the Advertising
Review Committee of the State Bar of Texas. TEX.
DISCIPLINARY R. PROF‟L CONDUCT R. 7.07(c). Websites
are exempt from the filing requirement if their content is
restricted to basic information such as (i) the name of the
lawyer or firm and lawyers associated with the firm,
along with office addresses, telephone numbers and
office hours; (ii) areas of practice and/or specialization;
(iii) the date of admission of the lawyer or lawyers to the
State Bar of Texas; (iv) technical and professional
licenses granted by the state or other recognized licensing
authorities; (v) other publicly available information
concerning legal issues, not prepared or paid for by the
firm or any of its lawyers, such as news articles, legal
articles, or other legal developments or events such as
proposed or enacted rules, regulations or legislation. TEX.
DISCIPLINARY R. PROF‟L CONDUCT R. 7.07(d) Comment
6 to Rule 7.07 of the TDRPC expressly excludes all
communications not prepared to secure paid professional
employment from the rule‟s filing requirements. TEX.
DISCIPLINARY R. PROF‟L CONDUCT R. 7.07 cmt. 6.
Thus, submitting a copy of the intended initial access
page of a website to the Advertising Review Committee
of the State Bar of Texas is only necessary if it contains
non-exempt information that a lawyer or firm prepared to
solicit paying work.
In addition to the content of a website, lawyers and
firms must consider the ethical obligations of the features
of a website. Inquiries from a website visitor about legal
advice or representation may raise issues concerning: the
establishment of an attorney-client relationship, creation
of potential conflicts, maintaining confidentiality of
attorney-client communications and the unauthorized
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practice of law. Warnings, disclaimers or cautionary
statements should be conspicuously placed so as to avoid
a misunderstanding by the website visitor as to whether (i)
a client-lawyer relationship has been created; (ii) the
website visitor‟s information will be kept confidential;
(iii) legal advice has been given; or (iv) the lawyer or
firm will be prevented from representing an adverse party.
The warnings and disclaimers should be in the language
used by the particular website, reasonably understandable,
and conspicuously placed. See Appendix B-2 for sample
forms of disclaimers. There may be other provisions that
a lawyer should include in the engagement letter and the
“I‟m not your Lawyer” letter that are based on the unique
facts and circumstances of the representation or based
upon changes in case law over time. Each lawyer should
add any additional provisions to cover the unique facts
and circumstances of such lawyer‟s matter.
VI. DUAL PRACTICE
DON’T forget your ethical obligations as a lawyer if
combining the practice of law with another
occupation
The dual practice of law and another occupation is
permitted under the TDRPC. If a lawyer decides to
practice another profession beyond the scope of
practicing law (or in conjunction with his or her practice
of law), the lawyer must be aware of the ethical
implications that may be encountered. Certain ethics
rules and obligations may apply even when the lawyer is
practicing outside the scope of the legal profession. This
is particularly true if the other profession is closely
related to the practice of law (e.g., insurance agent,
business consultant, collection agent or real estate broker);
the other profession is practiced from the same office as
the legal practice; or the attorney is performing both legal
and non-legal services in the same transaction. Areas of
particular concern for attorneys engaging in the dual
practice of law and another occupation include
confidentiality of information, conflicts of interest,
independence from non-lawyers, and
advertising/solicitation.
Confidentiality of Information. If a lawyer
engages in the dual practice of law and another
profession, that lawyer must remember to keep
client information confidential. In particular,
TDRPC Rule 1.05(b)(4) prohibits the use of
privileged information of a client for the
advantage of the lawyer or of a third person,
unless the client consents after consultation.
TEX. DISCIPLINARY R. PROF‟L CONDUCT R.
1.05(b)(4). As such, a lawyer cannot use
confidential information obtained in an
attorney-client setting and claim that the
information was obtained outside the scope of
the attorney acting as an attorney. A lawyer
cannot use its non-legal business to break the
protection of the attorney-client privilege even
though non-attorneys are not held to this same
standard nor subject to this rule. Therefore, it is
important that a lawyer that is practicing
another profession must specify to the client
that the attorney is not acting as the client‟s
attorney when the lawyer is acting in a business
context and outside the legal scope. The
communication to the client as to the capacity
in which the lawyer is engaged must be clear
and explicit and preferably in writing so the
client will not blur the legal and non-legal
functions to be performed by the lawyer.
Lawyers that fail to clarify the other
professional role must maintain confidentiality
as required by TDRPC Rules.
Conflicts of Interests. TDRPC Rule 1.08(a)
prohibits lawyers from entering into business
transactions with clients unless certain
conditions are met. TEX. DISCIPLINARY R.
PROF‟L CONDUCT R. 1.08(a). In particular,
Rule 1.08(a) prohibits business transactions
with clients unless: “(1) the transaction and
terms on which the lawyer acquires the interest
are fair and reasonable to the client and are
fully disclosed in a manner which can be
reasonably understood by the client; (2) the
client is given a reasonable opportunity to seek
the advice of independent counsel in the
transaction; and (3) the client consents in
writing thereto.”
Only if the lawyer believes that the conflict is
one that can be waived, may the lawyer proceed
with the business transaction and then only if: (a) the
terms of the transaction are fair and reasonable; (b)
the client consents in writing after being informed of:
(i) the terms of the transaction, such terms being
reduced to writing in plain language that the client
can understand; (ii) the lawyer‟s financial interest;
(iii) the potentially adverse consequences of any
potential conflict; and (iv) whether the business
transaction will afford the client the protection of the
attorney client relationship.
In such a circumstance it is also prudent for the
lawyer to disclose any other available alternatives to
the provision of the non-legal business services by
the lawyer. As with the engagement letter, it is also
advisable for the lawyer to walk the client through
the written consent, carefully summarizing the terms
of each paragraph.
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Independence from Non-Lawyers. TDRPC
Rule §5.04(a) prohibits lawyers from sharing
legal fees with non-lawyers, with limited
exceptions. TEX. DISCIPLINARY R. PROF‟L
CONDUCT R. 5.04. TDRPC Rule §5.04(b) also
prohibits lawyers from entering into
partnerships or other business arrangements
with non-lawyers if any part of the business
constitutes the practice of law. Id. In
considering business arrangements with respect
to a non-legal business, the lawyer must take
care not to allow non-lawyers any control over
the lawyer‟s legal practice and must be careful
to avoid any sharing of legal fees.
Advertising/Solicitation. Attorneys
providing non-legal services must be careful
with the manner that the attorneys advertises
their non-legal services. An attorney is not
permitted to advertise the non-legal business
services in conjunction with advertisements and
promotions of the lawyer‟s legal services. For
example, a lawyer is prohibited from
advertising a real estate business as owned by
“Attorney X” or affiliated with the "Law
Offices of Attorney X.” Ethics Opinion 119
(November 1955) provides that lawyers should
use separate letterhead for non-legal business
apart from the lawyer‟s legal business. Tex.
Comm. on Professional Ethics, Op. 119.
Specifically, the non-legal business letterhead
cannot reference that the person is an attorney,
a member of the Bar of Texas and other legal
organizations, or list in the person‟s
biographical data articles written by the
attorney addressing legal subjects in law or
trade publications. Lawyers must also carefully
observe rules regulating direct solicitation when
providing non-legal services to clients.
Lawyers may not use the second business as a
way to solicit legal clients in a manner that
violates TDRPC §7.03.
VII. DOCUMENT RETENTION AND
DESTRUCTION POLICIES
DO develop and implement a policy concerning the
retention and destruction of documents.
In Texas, the entire contents of a lawyers legal file
belong to the client, even after the matter is closed. See
Resolution Trust Corp. v. H--, P.C., 128 F.R.D. 647 (N.D.
Tex. 1989). This premises arises from TDRPC Rule
1.14(b) set forth above, which requires that the lawyer
promptly deliver to the client any property that the client
is entitled to receive, and TDRPC Rule 1.15(d), which
provides:
“Upon termination of representation, a lawyer
shall take steps to the extent reasonably
practicable to protect a client‟s interests, such
as giving reasonable notice to the client,
allowing time for the employment of other
counsel, surrendering papers and property to
which the client is entitled and refunding any
advance payments of fee that has not been
earned. The lawyer may retain papers relating
to the client to the extent permitted by other law
only if such retention will not prejudice the
client in the subject matter of the
representation.”
TEX. DISCIPLINARY R. PROF‟L CONDUCT R. 1.15(d).
Notwithstanding that clients own the files, lawyers for a
matter have a legitimate interest in maintaining client
files for at least the statute of limitations for grievance
claims against an attorney, which in Texas is four years.
TEX. R. DISCIPLINARY P. 15.06. In addition, as set forth
above, lawyers must maintain records relating to trust and
other IOLTA accounts for a period of five years. Over
time, an enormous amount of paper can be collected by
the practicing lawyer. Managing and storing this paper
can be costly. Since lawyers must comply with these
rules in spite of the cost, it is imperative that lawyers
maintain their files in a manner that will reduce the
amount of paper and safeguard the client‟s legitimate
rights to its property.
Here are some guidelines for a retention/destruction
plan to help manage the paper:
Engagement Letter. Include in the engagement
letter the lawyer‟s policy on retention and
destruction of client files. See above and
Appendix A-2 for an example of such a
provision.
Closing of Matter. As soon as possible after a
matter closes, the lawyer should:
1. Remove and return original documentation
to clients including minute books and stock
certificates; original signed closing documents;
original plats, surveys and title policies;
corporate seals; and original deeds, easements,
and other evidence of interests in real property.
2. Remove and destroy drafts and draft chains;
lawyers‟ handwritten notes that do not have
historical or other significance; research
materials available free or inexpensively from
public sources; duplicates; superseded internal
legal memoranda; blank legal pads, forms and
binders; news clippings which do not have
historical or other significance; public
information about related cases; and lawyer
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working files to the extent duplicative of
official file material.
3. Remove and retain permanently all billing
files and related accounting information;
engagement and termination letters; new
business or conflict reports; waiver letters and
ethical wall documentation; legal opinions and
legal opinion backup memorandum;
communications with the client or internal file
disposition; communications with the client
regarding the return of any materials to the
client; memoranda from the lawyer regarding
legal advice given to, but declined by, the client;
memorandum or notes regarding allocation of
responsibility between the lawyer and the client;
and other sensitive matters.
In addition, it is helpful for the lawyer to
remind the client about its procedures regarding
document retention upon the close of a matter.
See Appendix C for a sample letter regarding
procedures for closing matters with existing
clients. There may be other provisions that a
lawyer should include in the closing letter letter
that are based on the unique facts and
circumstances of the representation or based
upon changes in case law over time. Each
lawyer should add any additional provisions to
cover the unique facts and circumstances of
such lawyer‟s matter.
Destruction of Client Files. After four years
(or earlier if authorized by the client) or five
years (for trust or escrow account records), if
the appropriate file stripping procedures have
been followed and the lawyer has confirmed
that no original documents or permanent
records remain in the file, the lawyer may
destroy the remaining records through
confidential means, unless destruction of the
records has been suspended for a pending or
anticipated proceeding or investigation.
Documents should not be placed in the trash,
but rather should be destroyed by incineration,
shredding or other suitable means to assure
against breaches of confidentiality. Documents
relating to a pending or existing proceeding or
investigation, whether in electronic, hard copy
or other format, and whether or not consisting
of drafts, handwritten notes, highlighting or
similar informal markings or materials, must be
preserved.
Increasingly, lawyers are maintaining electronic files
to manage client matters in lieu of paper files. This is
particularly true in the context of much unofficial
correspondence with clients and opposing counsel.
Electronic records should be similarly reviewed, retained,
and destroyed as required for paper copies. In addition,
since much of the correspondence is now completed over
email, senior lawyers must assure that adequate records
are maintained and preserved for client files that are
primarily handled by junior lawyers, and in particular,
must assure that the supervising lawyer has and/or the
law firm has access to, these electronic records
maintained by the junior lawyer. This is particularly
important as junior lawyers leaving the employment of
the law firm may inadvertently destroy records that are
needed for future (or efficient) client service.
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Appendix A-1
Sample Engagement Letter
Re: Engagement Letter re [title of matter or services]
Dear [Insert Recipient Name]:
This letter confirms our discussions concerning the scope, terms and conditions of our engagement by Client A
(“Client A” or “you”) with respect to: [Insert detailed description of matter or services]. Thank you for retaining
[Firm] in this engagement and for your consideration and cooperation concerning the matters covered in this letter.
(a) Limited Scope of Engagement and Client Relationship
Any new or expanded engagement beyond that described above will require our agreement. Similarly, except as
expressly set forth in this letter, any representation in this engagement of any person or entity other than Client A, such as
a parent, subsidiary or other direct or indirect affiliate of Client A, will require our agreement. That is, our client is, and
we are entering into an attorney-client relationship only with, Client A. Please advise any of Client A’s direct or indirect
affiliates or any of your or their [Insert, as appropriate, „members, partners, managers, directors, officers‟] or other
investors or controlling persons who express any uncertainty or different understanding, that this engagement does not
include any undertaking by [Firm] to represent any of them or create any attorney/client relationship between [Firm] and
any of them.
[Insert the following if the Firm is currently adverse to an affiliate of the client: In this regard, we want to advise
you that, on behalf of Client B, we are currently adverse to Client C, {as appropriate: the/a parent, subsidiary, direct or
indirect affiliate, member, partner, manager, officer, director, other controlling person} of Client A. Because we are not
entering into an attorney/client relationship with Client C, of course, we will continue to represent Client B in that other
matter.]
(b) Staffing
You have designated [client contact] as the person from whom we will take direction and to whom we will report
in connection with this engagement. I [or other lawyer responsible for the matter] will have primary responsibility for
this engagement and will be assisted by such other lawyers and service personnel as [I/he/she] deems appropriate from
time to time in order to provide high quality services in a cost-efficient manner. I [or other lawyer responsible for the
matter] will be the Partner generally responsible for [Firm]‟s representation of Client A, including matters related to
billing and staffing.
(c) Potentially Adverse Representations or Conflicts of Interest; Advance Waiver
[Firm] represents and in the future will represent many other clients. Some may be direct competitors of Client A
or otherwise may have business interests that are contrary to Client A’s interests. It is even possible that, during the time
we are working for you, an existing or future client may seek to engage us in connection with an actual or potential
transaction or pending or potential litigation or other dispute resolution proceeding in which such client‟s interests are or
potentially may become adverse to Client A’s interests.
[Firm] cannot enter into this engagement if it could interfere with our ability to represent existing or future clients
who develop relationships or interests adverse to Client A. We therefore ask Client A to confirm that [Firm] may
continue to represent or may undertake in the future to represent any existing or future client in any matter (including but
not limited to transactions, litigation or other dispute resolutions), even if the interests of that client in that other matter are
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directly adverse to [Firm‟s] representation of Client A, as long as that other matter is not substantially related to this or
our other engagements on behalf of Client A. In the event of our representation of another client in a matter directly
adverse to Client A, however, [Firm] lawyers or other service providers who have worked with Client A will not work
for such other client, and appropriate measures will be taken to assure that proprietary or other confidential information of
a non-public nature concerning Client A acquired by [Firm] as a result of our representation of Client A will not be
transmitted to our lawyers or others in the Firm involved in such matter.
In other words, we request that Client A confirm that (1) no engagement that we have undertaken or may
undertake on behalf of Client A will be asserted by Client A either as a conflict of interest with respect to, or as a basis to
preclude, challenge or otherwise disqualify [Firm] from, any current or future representation of any client in any matter,
including without limitation any representations in negotiations, transactions, counseling or litigation adverse to Client A,
as long as that other matter is not substantially related to any of our engagements on behalf of Client A, (2) Client A
hereby waives any conflict of interest that exists or might be asserted to exist and any other basis that might be asserted to
preclude, challenge or otherwise disqualify [Firm] in any representation of any other client with respect to any such matter,
(3) Client A has been advised by [Firm], and has had the opportunity to consult with other counsel, with respect to the
terms and conditions of these provisions and its prospective waiver, (4) Client A’s consent to these provisions is both
voluntary and fully informed, and (5) Client A intends for its consent to be effective and fully enforceable, and to be
relied upon by [Firm].
(d) Compensation and Disbursements
Our fees are generally determined by the time devoted by each lawyer or other service provider involved in the
engagement and the hourly billing rates assigned to each such person. [Currently, hourly rates for our lawyers who are
likely to be working on this matter range from $___ to $___ for partners and $___ and $____ for associates.] Our hourly
rates are revised periodically, and we reserve the right to revise them from time to time during the course of our
representation of Client A. We submit periodic billing statements (generally monthly), which are due and payable upon
presentation. In situations involving extraordinary risks, efforts or results, we may request that Client A give
consideration to a supplemental fee over and above our hourly rates. [Describe any additional fee arrangements or any
commitments to bill other than on a monthly basis.]
[Insert the following if not precluded by fee arrangement: We may require a retainer at any time, which we will
apply to any unpaid fees, disbursements and charges or as we may otherwise agree with Client A. Any unused portion of
a retainer is fully refundable when our representation is completed or terminated. {In accordance with our conversation
concerning compensation, enclosed is our statement for an initial retainer in the amount of $___.}]
Unless we specifically agree, any fee estimate that we may provide is not a commitment to perform the services
within a fixed time or for a fixed fee.
In addition to our fees, we expect our clients to defray certain costs and expenses incurred during our
representation of them. A description of our Disbursements and Charges Billing Policies is enclosed. Please note that
although our charges for non-cash costs incurred by the Firm reflect our good faith estimate of our actual, fully absorbed,
out-of-pocket costs, those estimates may differ from our actual costs. Normally, disbursements and charges will be
subject to reimbursement from Client A in the regular billing cycle. In some circumstances, however, such as in the case
of particularly large items, we may ask Client A to pay these items directly or in advance.
(e) Procedures upon Termination; Return of Documents; Intellectual Property
Unless previously terminated, our representation of Client A will terminate upon our sending you our final
statement for services rendered in this matter. In that case, or otherwise at your request, any papers and property sent by
you to us will be returned to you. Our own files pertaining to the matter, including lawyer work product and
administrative records, as well as document copies, will be retained by the Firm in accordance with our document
retention policy. All documents retained by the Firm will be transmitted in the ordinary course to the person responsible
for administering our records retention program. Subject to our obligations under the bar requirements applicable to
[lawyer responsible for the matter], we reserve the right to destroy or otherwise dispose of any documents or other
materials, including electronic versions, retained by us after the termination of the engagement.
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All intellectual property and other know-how developed by us in connection with this engagement, including
subject matter expertise, whether or not preserved in written or electronic form, may be retained by us and used in
connection with engagements on behalf of other clients, so long as no confidential information relating to Client A is
thereby disclosed.
Please sign and return to us the enclosed copy of this letter in order to confirm that it accurately reflects the scope,
terms and conditions with respect to this engagement. If you would like to discuss any of these matters, please give me a
call.
Very truly yours,
[Firm Lawyer]
On behalf of Client A, the undersigned confirms that this letter accurately reflects the scope, terms and conditions
with respect to this engagement and that the undersigned‟s execution and delivery of this confirmation on behalf of Client
A has been duly authorized by Client A.
Dated:
Signature:
Name:
Title:
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Appendix A-2
Sample “I‟m Not Your Lawyer Letter”
__________________________________
__________________________________
__________________________________
__________________________________
Re: [Project]
Dear [Insert Recipient Name]:
It was a pleasure to meet you last week. This letter confirms what we discussed about the relationship between
you, our client, [Client], and [Firm] concerning the [Project].
As we discussed, our only client in this matter will be [Client]. We anticipate that our firm will be preparing most
of the documents necessary to effectuate the various aspects of the [Project]. We will, of course, provide you (either
directly or, if you should decide to retain counsel, through that counsel) with draft copies of those documents to allow you
to comment on their terms, suggest changes, and generally protect your interests. In preparing documents, or doing other
work on the project, however, we will be representing only [Client] and [his/her/its] interests. If you wishes to have legal
representation in this matter, you should retain another lawyer or law firm.
We know that you have a good relationship with [Client]. However, in a venture such as the [Project], situations
could arise where [Client's] interests differ from yours. In any such circumstances, we will be representing only [Client's]
interests. You have acknowledged that you understand that to be the case.
Let me assure you that we have not sent this letter because we anticipate any hostility between you and [client]
during this venture. We expect that you will enjoy working together on this project. It is best, however, to make sure
there is no misunderstanding about relationships between our firm and those with whom we have dealings on a project.
We look forward to working with you on this project.
Sincerely yours,
[Firm Lawyer]
cc: [Client]
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Appendix B-1
Certain Referenced TDRPC Rules
Rule 4.01(a) 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
Rule 7.02 Communications Concerning a Lawyer's Services
(a) A lawyer shall not make or sponsor a false or misleading communication about the qualifications or the services
of any lawyer or firm. A communication is false or misleading if it
(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement
considered as a whole not materially misleading;
(2) contains any reference in a public media advertisement to past successes or results obtained unless
(i) the communicating lawyer or member of the law firm served as lead counsel in the matter giving
rise to the recovery, or was primarily responsible for the settlement or verdict,
(ii) the amount involved was actually received by the client,
(iii) the reference is accompanied by adequate information regarding the nature of the case or matter
and the damages or injuries sustained by the client, and
(iv) if the gross amount received is stated, the attorney's fees and litigation expenses withheld from
the amount are stated as well;
(3) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that
the lawyer can achieve results by means that violate these rules or other law;
(4) compares the lawyer's services with other lawyers‟ services, unless the comparison can be substantiated
by reference to verifiable, objective data;
(5) states or implies that the lawyer is able to influence improperly or upon irrelevant grounds any tribunal,
legislative body, or public official;
(6) designates one or more specific areas of practice in an advertisement in the public media or in a
solicitation communication unless the advertising or soliciting lawyer is competent to handle legal matters
in each such area of practice; or
(7) uses an actor or model to portray a client of the lawyer or law firm.
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(b) Rule 7.02(a)(6) does not require that a lawyer be certified by the Texas Board of Legal Specialization at the time
of advertising in a specific area of practice, but such certification shall conclusively establish that such lawyer
satisfies the requirements of Rule 7.02(a)(6) with respect to the area(s) of practice in which such lawyer is
certified.
(c) A lawyer shall not advertise in the public media or state in a solicitation communication that the lawyer is a
specialist except as permitted under Rule 7.04.
(d) Any statement or disclaimer required by these rules shall be made in each language used in the advertisement or
solicitation communication with respect to which such required statement or disclaimer relates; provided
however, the mere statement that a particular language is spoken or understood shall not alone result in the need
for a statement or disclaimer in that language.
Rule 8.04(a) Misconduct
(a) A lawyer shall not:
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
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Appendix B-2
Sample Disclaimers
Sample Specialization Disclaimer:
Lawyers resident in all offices, unless otherwise indicated in an individual attorney biography, are not certified by the
Texas Board of Legal Specialization.
Sample Website Disclaimers
The content of this web site is intended to convey general information about [Firm]. It should not be relied upon as legal
advice. It is not an offer to represent you, nor is it intended to create an attorney-client relationship. The content of any
Internet e-mail sent to [Firm] or any of its lawyers at the e-mail addresses set forth in this web site will not create an
attorney-client relationship and will not be treated as confidential.
The information contained in this website is provided for informational purposes only, and should not be construed as
legal advice on any matter. The transmission and receipt of information contained on this Web site, in whole or in part, or
communication with [Firm] via the Internet or e-mail through this website does not constitute or create a lawyer-client
relationship between us and any recipient. You should not send us any confidential information in response to this
webpage. Such responses will not create a lawyer-client relationship, and whatever you disclose to us will not be
privileged or confidential unless we have agreed to act as your legal counsel and you have executed a written engagement
agreement with [Firm].
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Appendix C
Sample Letter - Upon Close of Matter
[Client Name]
Re: Conclusion of Representation
Dear :
We are writing to confirm that our representation in connection with the matter has been concluded.
[*Because the lawyer-client relationship between us has ceased, we ] We will have no further obligation to advise you
in connection with this matter or as to future legal developments that may have a bearing on the matter. [*However,
unless we hear from you to the contrary, we intend to keep you on our mailing list that we use to provide friends of
the firm with information as to various legal developments that may be of interest.]
Our final statement for services rendered and disbursements and other charges is enclosed. If you have questions
regarding our statement, please call me. If you believe we have any property of yours with regard to this matter or need
copies from our files, please so advise us. If we do not hear from you in the next 30 days, subject to our obligations under
the bar rules of Texas, to retain certain records relating to our relationship with you, we will consider that you have agreed
that we may destroy our files in the ordinary course of our file review and document retention policies. Should you elect
not to have the files returned to you, we will review the files in an effort to ensure that any original legal documents or
items of intrinsic value have been returned to you before we dispose of the records.
We are pleased to have had the opportunity to be of service to you in this matter. We look forward to continuing
to serve you on other matters which are included in our engagement.
Sincerely yours,
[Firm Partner]
*Use if client has no other open/active matter with firm.