Proposed Amendment to the Confidentiality Rule of the Texas Disciplinary Rules of Professional Conduct
By: Amy Agnew
The State Bar Committee on Disciplinary Rules and Referenda recently recommended changes to the Texas Disciplinary Rules of Professional Conduct. Among the several rules recommended and approved by the State Bar Board of Directors is an additional exception to Rule 1.05, regarding the confidentiality of information. Generally, a lawyer shall not knowingly reveal client information.
The proposed change to Rule 1.05 suggests an additional exception for instances when a lawyer may reveal confidential information. Historically, a lawyer could reveal confidential information when the lawyer has been authorized to do so to represent the client. Other exceptions where confidential client information can be revealed include, but are not limited to, when a lawyer has reason to believe it is necessary to do so to comply with a court order, the Texas Disciplinary Rules of Professional Conduct or other law, or necessary to prevent the client from committing a criminal or fraudulent act.
The proposed amendment adds an exception to permit disclosure to secure legal ethics advice. Proposed 1.05(c)(9) states: “a lawyer may reveal confidential information: … to secure legal advice about the lawyer’s compliance with these Rules.” The proposed amendment mirrors American Bar Association Model Rule 1.6.
The discussion notes from the State Bar Committee on Disciplinary Rules and Referenda urge that the adoption of this proposed amendment will not harm clients because the lawyer to whom the disclosure is made will be under the same duty of confidentiality as the lawyer making the disclosure. With the extension of confidentiality to the other lawyer, it will protect the client but also foster an environment where lawyers can seek advice from other lawyers to ensure they are practicing law ethically. It will aid lawyers who otherwise may be reluctant to seek advice on ethical issues for fear of breaching his or duty of client confidentiality.
The Committee also indicated the proposed amendment is supported by Rule 1.1 of the Texas Disciplinary Rules of Professional Conduct, which relates to competent and diligent representation. It states: “A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence, unless: (1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or (2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances....”
The Committee stated the addition of Rule 1.05(c)(9) to the Texas Disciplinary Rules of Professional Conduct creates an environment where the consulting lawyer may have a professional responsibility to seek the advice of an experienced lawyer to comply with Rule 1.1 of the Texas Disciplinary Rules of Professional Conduct. It would create a safety net for lawyers, who are new in a certain practice area, to freely reach out to other lawyers for advice, which in turn, will help the client in the long run.