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St. Mary's Law Journal

Abstract

As a result of the enactment of the Texas Disciplinary Rules of Professional Conduct (“Rules”), Texas lawyer no longer practice under guidelines which include aspirational goals and discretionary moral choices. The Rules are mandatory in nature and depict a minimum standard of professional conduct which, if violated, could subject the offending lawyer to disciplinary action. Although the Rules provide a disclaimer stating that they “do not undertake to define standards of civil liability of lawyers for professional conduct,” Texas lawyers fear the Rules will be utilized as an independent basis for liability, or a standard of care for malpractice. The article will provide an overview of the rules of other jurisdictions and predict how the Rules might be utilized in Texas. Some of the Code-to-Rule changes raise the question as to whether the newly adopted Rules create new types of standards for professional liability. In particular, Rules 1.05, 5.01, 1.04, and 7.01 are of concern to Texas lawyers who believe such Rules may create a standard or for professional liability. Texas courts have not, however, agreed as to the exact role disciplinary rules play in legal malpractice actions. To date, only appellate courts have ruled on the role the Rules should play in legal malpractice suits. At a minimum, the Rules will continue to be utilized by expert witnesses as a means of establishing the reasonable prudent attorney standard of care in malpractice suits. It remains uncertain whether an implied warranty actionable under the Deceptive Trade Practices Act will be found to apply in legal malpractice suits. The safest approach is for Texas attorneys to read the Rules and assume that a violation may result in liability.

Publisher

St. Mary's University School of Law

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