Thursday, May 20, 2010

Proposed Updates to Texas Professional Rules Bring Confidentiality and Conflicts Implications

A set of proposed changes to Texas' Disciplinary Rules' has been published and is available on the Supreme Court of Texas web site along with a redlined document highlighting proposed modifications. See also an excellent summary provided via the Texas Lawyer. Key updates and proposed amendments to the rules include:
  • "Consent": Language clarifying that "consent" provided by a client in scenarios requiring consent must be "informed consent," based on a clear explanation provided by the lawyer. And that such consent must be provided in writing.
  • Proposed New Rule 1.00(c) -- Likely affecting future conflicts analysis, the new rule defines "affiliation" to include not only partners, members and associates of the firm, but also any lawyer who has a relationship with the firm that: "provides the lawyer with access to the confidences of the firm’s clients."
  • Proposed New Rule 1.17 -- Stipulates that a lawyer should not use or disclose confidential information provided by a prospective client, and that once receving such information is prohibited from representing an party adverse to the potential client in the same or a substantially related matter. This prohibition is waived if either the prospective client provides consent, or was instructed prior to discussions that it should not disclose any information which was confidential or would prevent the lawyer from representing a different client in the matter.

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