Staying Within the Lines: Proposed Rule Changes Could Blur the Lines for Attorneys

photo by Bruce A. Campbell The proposed changes to the Texas Disciplinary Rules of Professional Conduct could make it difficult for attorneys to practice “within the lines.”

One example of blurred boundaries is the definition of an “affiliated lawyer” in Rule 1.00(c)(iii).

A lawyer is “affiliated” with a firm if either the lawyer or the lawyer’s professional entity… has any other relationship with that firm, regardless of the title given to it, that provides the lawyer with access to the confidences of the firm’s clients that is comparable to that typically afforded to lawyers in category (i)…

Category (i) is defined as “a shareholder, partner, member, associate, or employee of that firm.”

How will the definition of affiliated lawyers create conflicts problems? Consider the following scenario.

A law firm brings in a contract lawyer to work on one particular matter but either 1) fails to limit the contract lawyer’s access to other clients’ matters on the firm’s computer or 2) fails to restrict the contract lawyer from hearing conversations related to other clients by firm lawyers within the office. The firm has probably provided “access to the confidences of the firm’s clients,” which is a condition for the contract lawyer to become an affiliated lawyer. By inadvertently making the contract lawyer an “affiliated the lawyer,” the firm now faces the potential of unforeseen conflicts of interest based on the past representations of the contract lawyer.

This is just one possible outcome from the proposed changes to the Disciplinary Rules. I will be posting more discussions about what lies ahead with the proposed amendments to the Disciplinary Rules.

Photo and processing by Bruce A. Campbell.

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