ETHICS Harlin C. Womble, Jr. 1:00 P.M. - 2:00 - Texas ALP

ETHICS
Harlin C. Womble, Jr.
FALL EDUCATION CONFERENCE
CORPUS CHRISTI,TEXAS
OCTOBER 5, 2012
1:00 P.M. - 2:00 P.M.

Texas Association of Legal Professionals
Affiliated with NALS…the association for legal professionals.
57 TH Annual Meeting & Education Conference
* * * * *
ETHICS
OMNI MARINA
Corpus Christi, Texas
Friday, October 5, 2012
1:00 pm
PRESENTED BY:
Harlin C. Womble, Jr.
Jordan, Hyden, Womble, Culbreth & Holzer, P.C.
500 N. Shoreline, Suite 900
Corpus Christi, Texas 78401
361.883.5678
hwomble@jhwclaw.com

Harlin C. Womble, Jr.
Born in Loma Linda, California, in 1952; admitted to bar 1987, Texas, U.S. District Court, Southern,
Western, Northern and Eastern Districts of Texas and U.S. Court of Appeals, Fifth Circuit.
EDUCATION: Del Mar College (A.A., 1971); Texas A & I University (B.A., 1975; M.A., 1982);
University of Texas School of Law, Austin (J.D., with honors, 1987). Late to the practice of Law, Harlin
was a successful small business owner for 10 years between his BA and JD degrees. Harlin is active in
community-theater, serving 4 years on the board of the Corpus Christi Playhouse and two years as
president. Harlin regularly represents various non-profit groups pro bono, including the South Texas Aids
Society. Listed in Texas Monthly and Super Lawyers every year of publication; and AV rated in Martindale
Hubbell.
MEMBER: State Bar of Texas; American Bar Association (Member, Litigation Section and Business
Section, Bankruptcy and Reorganization Committee); Coastal Bend Bankruptcy Bar Association
(President, 1990-1991; Director, 1989-1992). (Board Certified, Business Bankruptcy, Texas Board of Legal
Specialization); Board of Directors of Corpus Christi Lawyer Publication, 1994-1997.
PRACTICE AREAS: Bankruptcy; Business Workout and Reorganization; Business Litigation; Creditor’s
and Debtor’s Rights; Mediation.

.
General Ethics
Harlin C. Womble, Jr.
Jordan, Hyden, Womble, Culbreth & Holzer, P.C.
500 N. Shoreline, Suite 900
Corpus Christi, Texas 78401
361.883.5678
hwomble@jhwclaw.com

M ISCONDUCT
POSSIBLE CONSEQUENCES
Grievance
Liability Claim
Loss of fee
Loss of Insurance deductible
Loss of time from practice
Damage to reputation
Loss of client

Motion to disqualify (conflicts)
Court sanctions

RULES
Texas Disciplinary Rules of Professional
Conduct
Texas Rules of Disciplinary Procedure
distinguished
Multi- jurisdictional Considerations
Other States
Federal Court Differences
Federal System

Rule 5.03(a) Obligation
“A lawyer having direct supervisory
authority over the nonlawyer shall m ake
reasonable efforts to ensure that the person’s
conduct is compatible w ith the professional
obligations of the lawyer….”

Neglect – Rule 1.01
“[A] lawyer shall not: (1) neglect a matter
entrusted to the lawyer…”

Communication
Rule 1.03(a):
“A lawyer shall keep a client reasonably
informed about the status of a matter and
promptly comply with reasonable requests for
information.”
Rule 1.03(b)
“A lawyer shall explain a matter to the extent
reasonably n ecessary to permit the client to
make informed decisions r egarding the
representation.”

Keeping the Client Informed
M ajor source of grievances and client
satisfaction – dissatisfaction
Settlement decisions
Response time on calls

Atty Griev. Comm’n v. Harris,
794 A.2d 516 (Md. 2001)
Lawyers representing m ultiple Ps in a
personal injury case disciplined for
communicating with only 1 of 3 clients

Confidentiality
R ule 1.05 – Extremely Broad
All information “relating to a client or
furnished by the client…acquired by the
lawyer during the course of or by reason
of the representation of the client.”
R ule 1.05
Unprivileged client information
Attorney- client privilege distinguished
Includes names, medical information,
etc.
No request for secrecy required

Basic Prohibition of Rule 1.05
Unless an exception applies,
“a lawyer shall not knowingly: (1)
reveal confidential information of a
client or a former client to:…anyone…”
No “good gossip” exception

Common Exceptions
Client consents after consultation (Rule
1.05(c)(2)
To comply with a court order or law
(Rule 1.05(c)(4)

Potential Problems
Loose talk in firm kitchens, hallways,
elevators, airports, planes and cabs
Mis- sent fax or letter
(both ways)

Client Property – Rule 1.14
“Client property shall be identified
as such and appropriately
safeguarded.”

Rule 1.14
A lawyer shall promptly deliver to
the client…any funds or other
property that the client…is entitled
to receive.”
E.g: money, “documents”
File= everything (even
unflattering notes)

Conflicts of Interest
Principally Rules 1.06, 1.09
Key concepts:
*Loyalty
*Protecting client information
*Not using client or former client
info to disadvantage that person

Consent to Conflicts
Rule 1.06(c)- limited conflict – consent
exception
Based on informed consent
Existence, nature, all possible adverse
consequences of conflict
Some conflicts are nonconsentable

Rule 1.09
Generally prohibits undertaking
representation that is adverse to a
former client of the firm

Common Conflicts Settings
Family disagreement: amount or
division of settlement proceeds
“Migratory staff” problem (e.g.,
Thompson & Knight – legal assistant; 6
hour)
Nonlawyer screening
Corporate individual

Rule 3.01
Generally prohibits asserting
frivolous positions.

Rule 3.03(a)(1)
“(a) A lawyer shall not knowingly:
(1) make a false statement of
material fact or law to a
tribunal…”

Rule 3.04
A lawyer shall not:
U nlawfully obstruct access to
evidence
U nlawfully alter, destroy or
conceal documents or help another
person to do so
Falsify evidence, counsel or assist
a witness to testify falsely…

Rule 3.04(d)
A lawyer shall not:
“(d) knowingly disobey, or advise the
client to disobey, an obligation under
the …rules or ruling of a tribunal…”
*Includes any rule of civil procedure
or court rule.

Rule 4.01
A lawyer shall not:
(a) make a false statement of
material fact or law to a third
person; or
(b) fail to disclose facts necessary to
avoid assisting a crime or fraud.

Rule 8.04(a)(3)
A lawyer shall not:…engage in
conduct involving dishonesty, fraud,
deceit or misrepresentation…”

Litigation Misconduct
Lie, cheat, steal rules
E.g. – Rules 1.02(c), 3.01, 3.03, 3.04,
4.01, 8.04(a)(3)
Popular media and client expectations
Overlap with sanctions rules: T ex.R.
Civ.P. 13 (groundless pleadings), 191.3
(discovery), 215 (same)

Contacts with Opposing Party
Rule 4.02 – Prohibits:
C ommunicating w ith the (1) the
opposing party or (2) the opposing
party’s expert – unless opposing
counsel consents
E.g:
Interactive website access
Current employees (if in management
or position to bind)
“Treating” physicians retained

Contacting Unrepresented Persons
R ule 4.03 – Prohibits:
Stating or implying to an
unrepresented person that a lawyer
is “disinterested.” If the person
m isunderstands, must clarify.
E.g.:
Co- worker communications
“Investigators”

R ule 4.04 – Respect for rights of
a third person
(a) In representing a client, a lawyer
shall not use m eans that have no
substantial purpose other than to
embarrass
(b) A lawyer shall not present,
participate in presenting, or
threaten to present:

(1) criminal or disciplinary
charges solely to gain an
advantage in a civil matter; or
(2) civil, criminal or disciplinary
charges against a complainant, a
w itness, or a potential w itness in a
bar disciplinary proceeding solely
to prevent participation by the
complainant, w itness or potential
w itness therein.

Unauthorized Practice of Law
Rule 5.05 – Prohibits:
Assisting a nonlawyer in the
“unauthorized practice of law”

Texas Gov. Code § 81.101
“Practice of law” = preparation of a
pleading or other document incident
to an action…or the m anagement of
the action…in court as well as a
service rendered out of court,
including…advice or…any service
requiring…legal skill or
knowledge…”

Texas Penal Code § 38.122
3 rd degree felony to falsely hold
oneself out as a lawyer when not
licensed to practice law

Tex. Penal Code § 38.123
Class A m isdemeanor to advise a
person concerning personal injury
or property damages claims or
settlements, unless licensed to
practice law

Supervision of Nonlawyers
Rule 5.05, comment 4
“Rule 5.05 does not prohibit a lawyer
from employing…paraprofessionals and
delegating functions to them. So long as
the lawyer [1] supervises the delegated
w ork, and [2] retains responsibility for
the w ork, and [3] m aintains a direct
relationship w ith the client, the
paraprofessional cannot reasonably be
said to have engaged in…the
unauthorized practice of law.”

UPL
G iving legal advice v. communicating
legal advice
List position on letters, faxes, emails

R ule 7.02
Communications Concerning a
Lawyers Services
(a) A lawyer shall not make a false or
misleading communication about the
qualifications or the services of any lawyer
or firm. A communication is false or
misleading if it;
(1) contains a material
misrepresentation of fact or law, or omits
a fact necessary to make the statement
considered as a whole not materially
misleading;

(2) is likely to create an unjustified
expectation about results the lawyer
can achieve, or states or implies that
the lawyer can achieve results by m eans
that violate these rules or other law;
(3) compares the lawyer’s services
w ith other lawyers’ services, unless the
comparison can be substantiated by
reference to verifiable, objective data;
(4) states or implies that the lawyer
is able to influence improperly or upon
irrelevant grounds any tribunal,
legislative body, or public official; or

(5) designates one or m ore specific
areas of practice in any advertisement
in the public m edia or in a w ritten
solicitation unless the advertising
lawyer is competent to handle legal
m atters in each such area of practice.
(b) R ule 7.02(a)(5) does not require
that a lawyer is certified by the Texas
Board of Legal Specialization at the
time of advertising in a specific area of
practice, but such certification shall
conclusively establish that such lawyer
satisfies the requirement of R ule
7.02(a)(5) w ith respect to the area(s) of

practice in w hich such lawyer is
certified.
(c) A lawyer shall not advertise in
the public m edia that the lawyer is a
specialist, except as permitted under
R ule 7.04
(d) A ny statement or disclaimer
required by these rules shall be made in
each language used in the
advertisement or w riting w ith respect
to w hich such required statement or
disclaimer relates; provided however,
the m ere statement that a particular
language is spoken or understood shall

not alone result in the need for a
statement or disclaimer in that
language.

Rule 7.04
Advertisements in the Public Media
(a) A lawyer shall not advertise in the
public media that the lawyer is a
specialist, except as permitted under
R ule 7.04(b) or as follows:
(1) A lawyer admitted to practice
before the U nited States Patent O ffice
m ay use the designation “Patents,”
“Patent Attorney,” or “Patent Lawyer,”
or any combination of those terms. A
lawyer engaged in the trademark
practice m ay use the designation
“Trademark,” “Trademark A ttorney,”

or “Trademark Lawyer,” or any
combination of those terms. A lawyer
engaged in parent and trademark
practice may hold himself or herself out
as specializing in “Intellectual Property
law,” “Patent, Trademark, C opyright
Law and U nfair C ompetition,” or any
of those terms.
(2) A lawyer m ay permit his or
her name to be listed in lawyer
referral service offices that m eet the
requirements of Article 320d,
Revised Statutes, according to the

areas of law in which the lawyer will
accept referrals.
(3) A lawyer available to practice
in a particular area of law or legal
service m ay distribute to other
lawyers and publish in legal
directories and legal newspapers a
listing or an announcement of such
availability. The listing shall not
contain a false or m isleading
representation of special competence
or experience, but m ay contain the
kind of information that

traditionally has been included in
such publications.

Indirect Violations
R ule 8.04 – Prohibits:
V iolating the rules “through the acts
of another”
E.g.: employees, friends, relatives