- Disciplinary Rules
- Toll Free Attorney Ethics Helpline
- Required Notice to Clients
- The Grievance Process for Lawyers
- Grievance Referral Program
- Request an Opinion from the Professional Ethics Committee (PEC)
- Solicitation and Barratry - Frequently Asked Questions
- Contact a CDC Office in Your Area
- Texas Disciplinary Rules of Professional Conduct (Effective 6/1/05) [PDF]
- Texas Rules of Disciplinary Procedure (Effective 10/1/12) [PDF]
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If you are a lawyer, call our helpline if you are unsure about your ethical obligations in a particular situation. Our toll free helpline is offered through our Chief Disciplinary Counsel's (CDC) Office. Please note that this service is not confidential and is not binding on any local grievance committee panel.
Please be aware that the CDC cannot issue written opinions or legal advice regarding ethical questions and cannot address questions concerning pending grievances.
When you call,
the helpline will provide guidance on how to access the rules and
information you need, including ethics opinions and caselaw that may
help you reach an informed decision.
Pursuant to Texas Government Code Section 81.079, Texas attorneys must provide notice to clients of the existence of the grievance process. This notice may be provided via brochures in the attorney's place of business, signs in the place of business, in a contract for services, or on bills for services.
Most of the grievances we receive come from clients who feel their case is being neglected or their calls or emails are not being returned. The best way to avoid grievances is to communicate clearly with clients and diligently pursue their cases.
The State Bar has several programs, such as Law Office Management and the Texas Lawyer's Assistance Program, designed to help lawyers who need assistance.
What if a Grievance is
Filed Against Me?
When the Office of Chief Disciplinary Counsel (CDC) receives a grievance, an initial review is made to determine whether the grievance alleges facts which, if true, would constitute a violation of the Texas Disciplinary Rules of Professional Conduct. If the grievance does not allege such facts, it is dismissed as an inquiry, and you will receive notification from the Chief Disciplinary Counsel's office. There is no action required on your part when this occurs.
If the grievance alleges facts which constitute professional misconduct, you will be notified of the complaint and be given 30 days to respond to the allegations. The CDC will review your response and investigate the facts in order to determine whether there is just cause to proceed into litigation. If just cause is not found, the case is set before a summary disposition panel for dismissal. If the panel does not agree the case should be dismissed, it will move forward. If just cause is found, you will then be notified of the rule violations and be given 20 days to notify the CDC whether you elect to have the complaint heard in a district court of proper venue, with or without a jury, or by an evidentiary panel of a grievance committee. It is very important that you respond timely. Failure to timely file an election is conclusively deemed as an affirmative election to proceed to an evidentiary panel hearing. You may consider retaining counsel.
The Grievance Referral Program (GRP) is an important component of the disciplinary system. Implemented in 2007, the GRP allows the Commission for Lawyer Discipline to refer to the program lawyers who have engaged in minor misconduct and who otherwise meet the GRP eligibility criteria. In exchange for a likely dismissal of the underlying complaint, the respondent lawyer agrees to complete a remedial or rehabilitative program specifically tailored to address the issues that contributed to the misconduct, such as communication problems, poor law practice management skills, or mental health issues negatively impacting the lawyer's ability to practice law.
The PEC, which is a committee appointed by of the Supreme Court, issues ethics opinions responding to ethics-related questions. Only members of the State Bar of Texas may request a PEC opinion.
Before you request an opinion:
Check to see if an ethics opinion has already been published regarding your subject. The Texas Center for Legal Ethics maintains a searchable database of ethics opinions and rules at www.txethics.org
To request an opinion from the PEC:
- Prepare a written request that
- A scenario of background facts in the hypothetical situation;
- The question(s) presented;
- A discussion of applicable authority. This may not need to be exhaustive, but should focus on specific disciplinary rules that may be involved and any case law, prior opinions or opinions from other jurisdictions that may apply; and
- A statement that the question(s) presented
is not in litigation.
Michelle Jordan, Attorney Liaison
State Bar of Texas
Office of the Chief Disciplinary Counsel
Post Office Box 12487
Austin, Texas 78711
The PEC will not issue an opinion on a particular lawyer advertisement, but will consider general forms of lawyer advertising. Also, the PEC will not issue an opinion that concerns interpretation of legislation or interpretation of the unauthorized practice of law.
Under the Texas Disciplinary Rules of Professional Conduct, can I be disciplined if I telephone or visit in person with someone that I know has been arrested or involved in a car accident to solicit them as a client?
- With certain limited exceptions, the answer is yes. See Rule 7.03(a) concerning telephone and in person solicitations. Also it would be a Rule violation for a lawyer to have someone else, including a non-lawyer, solicit clients in this manner for them. See Rule 8.04(a)(1).
Under the Texas Disciplinary Rules of Professional Conduct, can I be disciplined if I send a letter to someone that I know has been arrested or involved in a car accident to solicit them as a client?
- Generally, no, if you follow Rule 7.05 concerning written solicitations and Rule 7.07 concerning filing requirements of written solicitations. However, also see Rule 8.04(a)(9) which prohibits lawyers from engaging in conduct that constitutes barratry as defined by the law of this state.
Under the Texas Disciplinary Rules of Professional Conduct, can I be disciplined if I pay someone not licensed to practice law to solicit clients for me or to refer clients to me?
- With certain very limited exceptions, the answer is yes. See Rule 7.03(b). Also, see Rule 7.03(c) which prohibits payments to clients or anyone else in order to solicit employment. Additionally, accepting referrals from certain Lawyer Referral Services is also prohibited. See 7.03(e).
Are there other Texas Disciplinary Rules of Professional Conduct that I should be aware of concerning solicitation of clients?
- Yes, see Rule 7.06 concerning prohibited employment and Rule 7.03 (d) concerning prohibited fee collection. Lawyers should also be familiar with all of Section VII of the Texas Disciplinary Rules of Professional Conduct which deals with Information about Legal Services.
Isn’t there also a section in the Penal Code that deals with barratry?
- Yes, see Penal Code section 38.12 Barratry and Solicitation of Professional Employment.
I’ve heard something about Penal Code section 38.12(d)(2)(C), which deals with direct-mail solicitation of criminal defendants, being held unconstitutional. What information can you provide me on that issue?
- Seventeen years ago in Moore
v. Morales, 843
F.Supp. 1124 (S.D. Tex. 1994) [PDF], the district court found Tex.
Penal Code section 38.12(d)(2)(C) unconstitutional as it relates to
written solicitations of persons who are arrested or issued a
summons. The Attorney General did not appeal this portion of the
court’s holding. See Moore
63 F3d.358, 360 (5th Cir. 1995) [PDF].
In 2009, the 81st Texas Legislature passed House Bill 148 (H.B.148) [PDF] which amended the barratry statue. The amended statute retained 38.12(d)(2)(C), notwithstanding the prior ruling in Moore, leading to confusion as to whether the provision remained viable. As a result, a lawyer, Villasana, challenged the constitutionality of Tex. Penal Code section 38.12(d)(2)(C) and asked for a permanent injunction of its enforcement. See McKinley v. Abbott, 643 F.3d 403, 404-05 (5th Cir. 2011) [PDF]. The district court held that section 38.12(d)(2)(C) was unconstitutional. Id. However, on appeal, the 5th Circuit dismissed the lawyer’s claims as moot rather than directly affirming the district court’s holding that the provision was unconstitutional. See McKinley at 406-07. The 5th Circuit based its decision on the Attorney General’s statement “that neither he nor any county or district attorney in Harris and its bordering counties will attempt to enforce § 38.12(d)(2)(C) as it applies to written communications since it was declared unconstitutional by a district court in 1994. FN14 We have no reason to doubt [the Attorney General’s] statement.” Id. The court continued in footnote 14:
“As explained above, attorney Villasana challenges § 38.12(d) as it relates to written solicitations of arrestees. In 1994, the state successfully appealed the district court’s judgment holding the entire statute unconstitutional but only the part that related to written solicitations of accident victims, leaving in place – at least in theory – the holding of the district court as it relates to arrestees. Moore, 63 F.3d at 363-64” [PDF] (Emphasis added.) See Id.
However, during McKinley, a new statute creating civil liability for barratry was signed into law on May 19, with an effective date of September 1, 2011. On August 5, 2011, a Dallas law firm filed suit in the Northern District of Texas once again challenging the constitutionality and enforcement of Tex. Penal Code 38.12(d)(2)(C) as well as part of the new civil remedies provisions. The case is Sullo & Bobbitt, PLLC v. Abbott, Case No. 3:11-cv-01926-D [PDF]. This case is being closely watched, because lawyers now face the threat of civil enforcement and liability under the government code sections described below.
Additional relevant authority on this topic includes: AG Opinion JC-0022 (1999).
Can you provide me with more information on the new civil laws regarding barratry that went into effect on September 1, 2011?
- Government Code section 82.065 has provisions
that deal with the voidability of legal services contracts when
barratry is involved. Government Code section 82.0651 creates civil
liability with substantial monetary penalties for lawyers who engage in
barratry. Based on the uncertainty surrounding the continued viability
of Penal Code section 38.12(d)(2)(C), the State Bar of Texas cannot
guarantee lawyers that there is no risk with regard to civil or
criminal liability for barratry if lawyers send (or continue to send)
written solicitation letters to prospective clients. Tex. Gov’t
Code section 82.0651 is a new law and it has not been tested. See
Senate Bill 1716. Until the issue is finally
settled, lawyers should closely monitor the pending litigation in
Sullo and review the related criminal, civil and disciplinary
provisions, seeking the advice of an attorney should there be any
remaining questions about potential liability under these
This material is intended for educational and informational purposes only and intended only to address disciplinary issues under the authority of the State Bar of Texas. It does not constitute legal advice and no liability is assumed in connection with the information contained herein. The above information does not create an attorney-client relationship and is not binding upon the State Bar of Texas. Additional ethics inquiries can be made to the Ethics Helpline at 800-532-3947.
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The Grievance Oversight Committee is a panel of volunteers comprised of six attorneys and three members of the public appointed by the Texas Supreme Court. The Committee is charged with reviewing the operation of the attorney-client grievance process and reporting its observations and recommendations to the Court.
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