Texas Supreme Court’s Amendments to the Disciplinary Rules of Professional Conduct

By Caitlan E. Bratt

The Texas Supreme Court has adopted new amendments and professional conduct rules for lawyers, which went into effect on October 1, 2024 (see a Conformed Copy of the Court’s Misc. Order 249054).

The Texas Supreme Court approved and adopted amendments to Texas Disciplinary Rules of Professional Conduct 1.08, 1.09, 3.09, 4.03, 5.01, and 5.05. Further, the Court adopted Texas Disciplinary Rules of Professional Conduct 1.10 and 1.18 and Texas Rule of Disciplinary Procedure 13.05 as entirely new rules. The amendments to the Rules of Professional Conduct address the following categories:

• Responsibilities to Prior and Potential New Clients, including Conflicts of Interest – Rules 1.08, 1.09, 1.10, 1.18, 4.03;
• Special Responsibilities of Prosecutor – Rule 3.09;
• Responsibilities of Partners and/or Supervising Attorneys – Rule 5.01; and
• Unauthorized and Remote Practice of Law – Rule 5.05.

For further clarification of the new and revised Rule changes, the Court updated its definition of “Fraud or Fraudulent” and constructed the following new definitions:

• “Confirmed in writing”;
• “Informed Consent”;
• “Represent, Represents, or Representation”;
• “Screened”; and
• “Writing or Written”.

A brief overview of the newly added and revised Rules changes can be found below. Please note: some former rules have been renumerated to account for the newly added rules.

Changes to the Texas Disciplinary Rules of Professional Conduct:

Rule 1.08. Conflict of Interest: Prohibited Transactions

Rule 1.08 has been partially revised to discuss the requirements for a lawyer entering into business transactions or any ownership rights adverse to a client.

Rule 1.09. Conflict of Interest: Former Client

Rule 1.09 has been extensively revised to address that a lawyer may not represent a person in a “substantially similar matter” where interests are materially adverse to the interests of a former client. Further, an attorney may not knowingly represent a person in the same or substantially related matter for which the lawyer’s firm represented interests adverse to a former client.

Rule 1.10. Imputation of Conflicts of Interest: General Rule

Rule 1.10 is a brand-new Rule with comments addressing a lawyer’s representations while employed by a current or former law firm and restrictions for a former firm’s ability to take clients who were previously represented by a former associated lawyer.

Rule 1.18. Duties to Prospective Client

Rule 1.18 is a brand-new Rule with comments addressing a lawyer’s duty to a potential client, including a duty not to reveal confidential information learned when consulting with a prospective client in good faith, and a prohibition against representing another client with interests materially adverse to the prospective client in a substantially related matter without written informed consent.

Rule 3.09. Special Responsibilities of a Prosecutor

Former Rule 3.09 previously ended at subjection (e). Under the revised Rule 3.09, subjections (f)-(h) have been added related to duties of a prosecutor who received credible information regarding the guiltlessness of a convicted Defendant and the prosecutor’s duty to disclose. Moderate changes to the comments following Rule 3.09 have also been made.

Rule 4.03. Dealing with Unrepresented Persons

Rule 4.03 has been expanded to prohibit an attorney from giving advice to unrepresented persons, other than advising that person to obtain legal counsel, to avoid a conflict of interest between the lawyer and their current client. The comments to Rule 4.03 have been extensively revised to create distinctions for real-world applications of this rule.

Rule 5.01. Responsibilities of a Partner or Supervisory Lawyer

Rule 5.01 and its comments have been extensively revised to discuss the obligations, including mitigation of consequences, of a lawyer in a managerial role who fails to give reasonable assurance or make reasonable efforts to have their subordinate lawyers conform to the Rules. 

Rule 5.05. Unauthorized Practice of Law; Remote Practice of Law

Rule 5.05 was previously titled “Unauthorized Practice of Law” and contained only subparts (a)(a) through (a)(b). The rule and its comments have been expanded to now include references to “Remote Practice of Law” adding subparts (b) through (d)(3) to discuss limitations and restrictions for a lawyer’s legal services, oral or written representations, and advertising of a lawyer practicing outside of their licensed jurisdiction.

Changes to the Texas Rule of Disciplinary Procedure

13.05. Termination of Custodianship

Rule 13.05 is a brand-new Rule that lists situations in which an appointed custodian must terminate its relationship, whether by transfer of the file, court order, or otherwise. The rule further provides procedural advice on how to obtain clarification and disposition in custodianship matters.

Attorneys and insurers should be especially aware of the new change to Rule 1.09, which focuses on addressing conflicts of interest when an attorney changes firms or represents a new client. For example, when a former defense attorney for an insurer transitions to the representation of plaintiffs or policyholders, it would prohibit them from representing a client in a substantially related matter adverse to their interests without the informed consent of the former client in writing. Rule 1.09 also prohibits an attorney from representing a person in the same or substantially related matter in which the attorney’s former firm represented a client whose interests were materially adverse to that person and regarding whom the attorney had obtained confidential client information. Insurers and attorneys should be on the lookout for such scenarios as oftentimes former insurance defense attorneys move to plaintiff firms. Clausen Miller, P.C. requires its attorneys to stay up to date on these Rules to preserve our ethical duties and make legal decisions that are in the best interests of our clients. Most of these Texas Disciplinary Rules of Professional Conduct amendments and additions are directly applicable to our line of work. As insurance advocates and litigators, Clausen Millers’ attorneys are perpetually checking for conflicts of interest in each case, both at the beginning of each case, but also throughout each case as new parties are added to the litigation.