In Texas, the Texas Disciplinary Rules of Professional Conduct set the standards of ethical conduct for purposes of lawyer discipline. These rules provide the minimum standards of conduct below which no lawyer can fall without being subject to disciplinary action. A violation of these Rules does not necessarily mean a lawyer has committed legal malpractice. Thus, lawyer misconduct and legal malpractice are not one and the same. Typically, the Texas Disciplinary Rules of Professional Conduct are utilized in a legal malpractice suit by an expert who explains to a jury the significance of these guidelines and what the lawyer should and should not do. All lawyers should be familiar with these Rules when representing, advising and guiding a client in a transaction or through litigation. Unfortunately, some lawyers ignore these guidelines and subject themselves to discipline. When lawyers are advising clients, the Rules governing conflicts of interest, fee agreements and confidentiality are sometimes ignored or not followed. If this occurs, a client needs to recognize his rights and the duties owed to him. Some of the most commonly violated ethical rules are:
- Conflicts of interest: A lawyer shall not represent opposing parties in the same litigation or a person whose representation involves a substantially related matter in which the person's interest are "materially and directly adverse" to the interests of another client. In the latter scenario, a lawyer can continue representation if he believes his representation will not be materially affected and each client consents to such representation after full disclosure. The waiver does not have to be in writing but this is recommended.
- Trust Funds: Typically, all money received by a lawyer on behalf of his client is to be held by the lawyer in trust for the client's benefit. A lawyer shall promptly distribute the client's share of the proceeds, and provide a detailed accounting of any funds retained by the lawyer (such as those to cover expenses and/or legal fees). In the event of a dispute concerning the amount to be withheld by the lawyer, the lawyer must promptly distribute the undisputed portion to the client, and may not hold such undisputed funds hostage until the fee dispute is resolved.
- Fee agreements: Typically, there are two different types of fee arrangements between client and lawyer — hourly and contingent. Hourly agreements do not have to be in writing, but contingency fee agreements must be in writing. When the agreement is written, lawyers should disclose within the agreement the basis for the fee and the services to be performed. They should even explain in detail how expenses are to be calculated and paid. Fee agreements are contracts and contain typical legal clauses that affect and impact a client's rights and should be scrutinized carefully.
- Confidentiality: A lawyer shall not knowingly reveal or disclose confidential information of a client or a former client except in very limited circumstances. Confidential information also should not be used to the disadvantage of the client.
If your lawyer failed to disclose a conflict of interest or a significant term in a fee agreement, or failed to protect your confidential information, you may want to file a grievance against that lawyer with the State Bar of Texas. You also may have evidence to support a potential legal malpractice case. Therefore, it is important to consult with an experienced attorney familiar with the Texas Disciplinary Rules of Professional Conduct. Nowak & Stauch's lawyers are familiar with the Rules and take the time to listen to the facts of your situation and provide you with expert advice about the best course of action.
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If you have questions regarding the ethical rules governing lawyers in Texas or a violation of these rules, we encourage you to contact Nowak & Stauch, LLP by completing the contact form located on this website. We accept most cases on a contingent fee basis, and offer services in English and Spanish.