[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

brakes: the ones for the cab worked; the ones for the trailer did not and the greater weight of the trailer had the effect of
pushing the entire truck, even though the cab brakes were working), that Perez did not have enough time to apply the
emergency brakes, and that there was nothing the managers or supervisors at Valley Coca-Cola could have done to
prevent the accident.
3. By his summary judgment affidavit offered in support of Perez, Joseph Connors stated that, in his professional
opinion as a board certified criminal law specialist, if he had known that the statement had been provided and had been
able to have Perez explain his lack of training or knowledge about the brake system to the grand jury, Perez would not
have been indicted for manslaughter. Ruben Perez also stated in his affidavit that Valley Coca-Cola Bottling Company
had not given him any instruction in brake inspection, maintenance, or use in an emergency situation.
4. An attorney’s fiduciary responsibilities may arise even during preliminary consultations regarding the attorney’s
possible retention if the attorney enters into discussion of the client’s legal problems with a view toward undertaking
representation.
5. Disclosure of confidential communications by an attorney, whether privileged or not under the rules of evidence,
is generally prohibited by the disciplinary rules governing attorneys’ conduct in Texas. [citing Rule 1.6] In addition, the
general rule is that confidential information received during the course of any fiduciary relationship may not be used or
disclosed to the detriment of the one from whom the information is obtained.
1. Maggie Rivas, Truck Driver Says He Spent Years After Bus Crash Doing Penance; He Went into Self-Imposed Exile at
Home as Punishment, Dallas Morning News, May 7, 1993, at 1A.
2. Maggie Rivas, Trucker Absolved of Bus Deaths; ‘89 Alton Tragedy Killed 21 Students, Dallas Morning News, May 6,
1993, at 1A. Mr. Perez continues to suffer from brain injuries he received in the accident that reduced his intellectual
capacity to that of a fifth-grader, and he is permanently unable to work. A Tragedy Remembered, Dallas Morning News,
Sept. 21, 1999, at 17A.
3. John T. Noonan Jr., The Lawyer Who Overidentifies with His Client, 76 Notre Dame L. Rev. 827, 833 (2001).
4. RLGL §§ 48-50; Restatement (Third) of Agency § 8.08 (2006); MR 1.1.
5. RLGL § 20; Restatement (Third) of Agency § 8.11 (2006).
6. RLGL § 60; Restatement (Third) of Agency §§ 8.01, Comment c; 8.05 (2006); MR 1.6, 1.8(b), 1.9(a).
7. MR 1.9; RLGL § 60(1)(a) (prohibiting use or disclosure that would “adversely affect a material interest of the
client” “during or after the representation of a client”). The Texas equivalent of Model Rule 1.9 was adopted October
17, 1989, about one month after the accident, and became effective January 1, 1990. Tex. Govt. Code Ann. T.2, Subt.
G, App. A, Art. 10, § 9, R. 1.09 (2001). The comments to the rule indicate it was based on prior case law, including a
case decided about six months before the accident where the Texas Supreme Court mandated that this rule be applied
to all former client representations. See NCNB Tex. Bank v. Coker, 765 S.W.2d 398 (Tex. 1989).
8. RLGL § 70, Comment f (allowing confidential agents if “the person’s participation is reasonably necessary to
facilitate the client’s communication with the lawyer . . . and the client reasonably believes that the person will hold the
communication in confidence”).
9. RLGL § 121; Restatement (Third) of Agency § 5.04, 8.01-8.05 (2006); MR 1.7.
10. MR 1.7, 1.16(a).
11. Judge Noonan points out that this episode was far from typical, but was the “most damaging episode” that
Brandeis’s enemies could cull from a distinguished 30-year career in law practice. Noonan, supra note 3 at 829.
12. Id. at 833.
13. The company that manufactured the bus also paid $23 million to accident victims due to improperly designed
hatches that did not allow the children to escape as water filled the bus. Truck Driver Settles Suit from Crash That Killed
21 Schoolchildren in ‘89, Dallas Morning News, May 26, 1994, at 29A.
14. RLGL § 70, Comment f.
1515. RLGL § 78(3).
1. Model Rules, Preamble [9]. This language first appeared in Canon 15 of the 1908 Canons of Ethics, titled
“How Far a Lawyer May Go in Supporting a Client’s Cause” (“The lawyer owes entire devotion to the interest of the
client, warm zeal in the maintenance an defense of his rights . . . [b]ut it is steadfastly to be borne in mind that the great
trust of the lawyer is to be performed within and not without the bounds of the law.”) and was the title of Canon 7 in
the 1969 ABA Model Code of Professional Responsibility (“A Lawyer Should Represent a Client Zealously, Within the
Bounds of the Law”).
2. RLGL § 23; Restatement (Third) of Agency § 8.09(2) (2006).
3. Restatement (Third) of Agency § 1.0, Comment c (2006).
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