CHAPTER 15 AVOIDING ETHICAL DRY HOLES--ETHICS & ADMINISTRATIVE LAW
| Jurisdiction | United States |
(Feb 2019)
AVOIDING ETHICAL DRY HOLES--ETHICS & ADMINISTRATIVE LAW
former Administrative Law Judge, Texas State Office of Administrative Hearings
Of Counsel, Coffin Renner LLP
Austin, TX
Christina J. Hymer
former Deputy Assistant General Counsel for Standards of Conduct, U.S. Department of Energy
Senior Counsel, Chevron
San Ramon, CA
Kennon L. Wooten
former Rules Attorney, Supreme Court of Texas
Partner, Scott Douglass & McConnico LLP
Austin, TX
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WENDY HARVEL was licensed as an attorney by the State of Texas in 1996. She is in private practice in an of counsel role with Coffin Renner LLP, specializing in utility regulatory law. She served as an administrative law judge at the Texas State Office of Administrative Hearings from 2000-2018, where she was both a master administrative law judge and the head of the public utility team, supervising the work of other public utility administrative law judges. She is a mediator, and has mediated disputes in all types of administrative cases, from health care licensing to complex public utility law. Prior to serving as an administrative law judge, Wendy was in private practice in Washington, DC and in Austin. She is a graduate of the University of Texas School of Law and the University of Michigan. Her husband and fellow law school classmate is Blake Hawthorne, the clerk of the Supreme Court of Texas. They have two daughters.
TINA HYMER is Senior Counsel at Chevron in San Ramon, California. She is the former Deputy Assistant General Counsel for Standards of Conduct, U.S. Department of Energy in Washington, D.C. She received her JD in 2002 from American University, Washington College of Law.
KENNON L. WOOTEN is a Partner with Scott Douglass McConnico in Austin, TX. Kennon joined the firm in May 2011, after serving as the rules attorney for the Supreme Court of Texas. Kennon joined Scott Douglass & McConnico LLP in 2011, after serving as the Rules Attorney for the Texas Supreme Court, working at Baker Botts LLP, and clerking for former Chief Justice Wallace B. Jefferson of the Texas Supreme Court. As Rules Attorney, she handled inquiries relating to rules and assisted the Court with promulgating and amending rules. At Scott Douglass & McConnico, her docket includes a broad range of civil litigation and appeals involving, among other things, allegations of breach of fiduciary duty, breach of contract, business tort, personal injury, Medicaid fraud, and professional malpractice. Her education includes the University of Texas at Austin (BA with highest honors, 1999) and the University of Texas School of Law (JD with honors, 2004). She served as the Head Teaching Quizmaster in law school. Kennon also has served as a member of the Texas Commission to Expand Civil Legal Services, a member of the Texas Supreme Court Task Force for Rules in Expedited Actions, the President of the Austin Young Lawyers Association, and the Chair of the State Bar of Texas Court Rules Committee. She currently serves as Editor-in-Chief for Austin Lawyer, Secretary of the Texas Legal Service Center, and Secretary of the Austin Bar Association. She is also a member of the American Law Institute, Supreme Court Advisory Committee, Editorial Board for The Advocate, and the State Bar of Texas Court Rules Committee. She is a frequent CLE speaker and has published a book and law-review articles on discovery practices. She received the Travis County Women Lawyers Association Litigation/Appellate Attorney Award in 2018, a "Standing Ovation" State Bar Volunteer Award in 2017, and a Special Commendation of the Texas Supreme Court and State Bar in 2011. She was named as a Texas Rising Star in 2008, 2009, and 2013-2017.
Introduction
The concept of "ethics" can be broad-reaching and amorphous, as reflected by the following definition:
1. ethics plural in form but singular or plural in construction: the discipline dealing with what is good and bad and with moral duty and obligation
2. a: a set of moral principles: a theory or system of moral values
b: ethics plural in form but singular or plural in construction: the principles of conduct governing an individual or a group professional ethics
c: a guiding philosophy
d: a consciousness of moral importance
3. ethics plural: a set of moral issues or aspects (such as rightness). 1
These days, many professions have adopted a code of conduct or body of rules that govern how certain professionals will conduct themselves during business dealings. There are also ethics laws that dictate how public officials must carry out government business. Generally, these guiding principles and laws are designed to ensure professionals and public officials carry out their functions with integrity. This article focuses specifically on the rules and laws applicable to attorneys and public officials participating in administrative and other proceedings.
I. Overview of General Duties Owed to Clients in All Settings
Attorneys owe myriad duties to their clients. In all attorney-client relationships, for example, attorneys owe fiduciary duties to their clients. Beyond those duties, attorneys also have duties to clients that are set forth in rules of professional conduct, as well as case law (and sometimes ethics opinions) addressing such rules. In addition, when it comes to an attorney's duty to protect her client's confidential information, the attorney must also consider the contours of the corresponding attorney-client privilege (the scope of which varies among jurisdictions).
Because this article is written for a presentation in Colorado, to an audience that will include attorneys practicing in multiple jurisdictions (including Colorado and Texas), this section of the article focuses primarily on the following authorities: The American Bar Association (ABA) Model Rules of Professional Conduct; the Colorado Rules of Professional Conduct; the Texas Disciplinary Rules of Professional Conduct; federal case law from the United States Supreme Court, Fifth Circuit, and Tenth Circuit; state case law from Colorado and Texas; and applicable Restatement provisions. Importantly, this section does not set forth a comprehensive analysis of any jurisdiction's laws relating to attorneys' duties to their clients.2 Instead, this section is
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designed to make the reader aware of some basic principles relating to these duties and to give the reader tools needed to avoid ethical pitfalls that exist for attorneys in all jurisdictions.
A. Fiduciary Duties Owed to Clients
The attorney-client relationship is a highly fiduciary relationship that "imposes heightened duties and obligations on attorneys" in relation to their clients.3 The fiduciary nature of this relationship arises as a matter of law.4 In other words, its existence does not depend on the terms of a contract or other, less formal dealings between the attorney and client.
Although courts have struggled to formulate a comprehensive definition of "fiduciary," courts in various jurisdictions have recognized that a fiduciary relationship generally requires the fiduciary to place the interests of the beneficiary before her own interests if the need arises.5
In the context of the attorney-client relationship specifically, courts have recognized that attorneys' duties to their clients include the duty of loyalty and the duty of confidentiality.6 An
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attorney's duty of loyalty to her client must be "undivided."7 In part for this reason, an attorney's fiduciary duties to her client do not extend to non-client third parties.8
The duty of loyalty does not remain undivided after the attorney-client relationship ends. However, the fact that the duty persists to an extent is indicated by limits placed on an attorney's ability to engage in representation that, generally speaking, may be adverse to former clients.9
Unlike the duty of loyalty, an attorney's duty to preserve a client's confidential information fully survives the attorney-client relationship's termination.10 Moreover, it is important to understand that the duty of confidentiality can be triggered before the attorney-client relationship begins and that it extends to prospective clients, even when no attorney-client relationship ensues.11
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B. The Duty of Confidentiality
As indicated above, the duty of confidentiality is not solely fiduciary in nature; it is also a professional-ethics obligation, which can prompt grievances and attorney discipline if breached. Maintaining the duty of confidentiality is critical because it "contributes to the trust that is the hallmark of the client-lawyer relationship" and encourages people to "seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter."12 The lawyer, in turn, "needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct."13
The scope of information deemed "confidential" varies from one jurisdiction to the next and therefore cannot be ascertained solely by reference to ABA Model Rules.14 For example, in Texas, "confidential information" is defined to "include[] both privileged and unprivileged client information[,]" and "unprivileged client information" is defined broadly as "all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client."15 This broad definition has been coined by some as the "'anti-gossip rule for lawyer[s].'"16
Although the ABA Model Rules are not determinative of states' confidentiality rules, the Model Rules provide a helpful framework for discussing attorneys' confidentiality obligations in relation to clients and prospective clients.17 Thus, ABA...
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