Legal Research of Conflicts of Interest
ConflictsMost lawyers know that the rules of ethics are a critical component of conflicts research. The Texas Disciplinary Rules of Professional Conduct can be found in a number of places. In Vernon’s, the rules appear following Chapter 81 of the Government Code, with annotations to cases and Texas ethical opinions. West’s Texas Rules of Court also have the rules. Online, the State Bar has a copy of the rules at http://www.texasbar.com/ContentManagement/ContentDisplay.cfm?ContentID=13942.
Federal courts do not always rely solely on state rules in coming to ethics conclusions. It is also more and more common for Texas lawyers to work with clients in other jurisdictions where another state’s ethics rules may affect liability. For these reasons, it is important to consider the ABA Model Rules as well as any state rules that might affect a particular situation. The ABA Model Rules also may shed light on ethical issues not directly addressed by the Texas rules. The ABA adopted an Ethics 2000 initiative in 2002, which Texas is now evaluating for possible adjustments in Texas rules. Also, comparison of Texas and ABA language often sheds light on the intent of the Texas rules. The ABA Model Rules, along with the history of changes in those rules, is online at http://www.abanet.org/cpr/mrpc/model_rules.html.
While the ethics rules are primarily law in disciplinary matters, they are something different in legal malpractice cases. They are not merely persuasive, but are evidence of the standard of care in legal malpractice cases, presented by the testimony of expert witnesses. It is quite common for there to be a dearth of case law establishing a pertinent interpretation of a particular disciplinary rule, and the opinion of experts is often crucial in a legal malpractice trial.
Ethics opinions are an important source of information on conflicts that may be used by experts. While ethics opinions are advisory only, they are frequently cited in court opinions. Texas ethics opinions now appear in the Texas Bar Journal, but without an accompanying consolidated index. Older opinions were published in the Baylor Law Review. The Texas Center for Legal Ethics and Professionalism has posted most Texas ethics opinions on their website at http://www.txethics.org/reference_opinions.asp. The most recent opinions are not yet posted, so reference to the Bar Journal may be necessary for Opinion 577 and higher. ABA opinions are available individually from the ABA. Information on those opinions is at http://www.abanet.org/cpr/pubs/ethicopinions.html. ABA Opinions can sometimes be found online on other websites. Other states’ opinions are often available online on dedicated sites.
The ABA/BNA Lawyers’ Manual on Professional Conduct is a subscription service providing ABA ethics opinions and rules as well as digests of new cases and ethical opinions from every state.
Cases on conflicts of interest can be divided into three general categories: discipline, malpractice, and disqualification. Each of these types of cases has certain pitfalls when applied in a different context, particularly since lawyers want to avoid problems in all three areas. Discipline cases often fail to address common situations faced in a liability or disqualification context, and may focus on one particular rule to the exclusion of other considerations. Malpractice cases require damages for a finding of liability, which may not be required in disqualification or disciplinary contexts. Disqualification cases often turn upon issues such as when the motion for disqualification is raised, rather than the merits of the ethical issues involved.
A number of sources have compiled legal malpractice cases. Ronald E. Mallen and Jeffrey W. Smith, Legal Malpractice 2008 ed. (Thomson West 2008), is a thorough hornbook of legal malpractice cases in the US which includes some loss prevention forms and suggestions. A conflicts specific website maintained by William Freivogel, http://www.freivogelonconflicts.com/, is very useful for getting a quick survey of US cases on particular conflict of interest issues.
Two Texas specific publications providing information and analysis of Texas ethics and malpractice issues are:
- Charles F. Herring, 2008 Texas Legal Malpractice and Lawyer Discipline (American Lawyer Media 2008)
- Robert P. Schuwerk and Lillian B. Hardwick.Handbook of Texas Lawyer and Judicial Ethics: Attorney Tort Standards, Attorney Ethics Standards, Judicial Ethics Standards, Recusal and Disqualification of Judges, 2007-2008 ed. (Vol. 48 & 48A, Texas Practice Series).
The Restatement (Third) of the Law Governing Lawyers (American Law Institute, 2000), is an attempt to synthesize a US law of lawyering in all contexts. Despite the name, this is the first restatement of the law of lawyering by ALI. The Restatement is not primary law in any jurisdiction, but is cited with increasing frequency by courts. Cases citing or illustrating the Restatement are updated annually in a pocket part. Having the juxtaposition of disqualification, malpractice and disciplinary considerations is of some help in making decisions regarding ethical and malpractice prevention problems. Unlike the ABA Model Rules, The Restatement includes a number of hypotheticals that help to flesh out the nuances of conflict issues. Still, in some cases additional practical analysis is needed to avoid ethical and malpractice problems.
