ethics do’s and don’ts for the dirt lawyer

ETHICS DO’S AND DON’TS FOR THE DIRT LAWYER

SUSAN C. COX

HONORABLE KAREN GREN JOHNSON

Jones Day

2727 N. Harwood Street

Dallas, Texas 75201

Co-Author

CATHERINE WEIR, Dallas

Jones Day

State Bar of Texas

33rd

ANNUAL

ADVANCED REAL ESTATE LAW

July 7-9, 2011

San Antonio

CHAPTER 24

SUSAN C. COX Partner

Areas of Focus Real Estate

Real Estate Finance

Real Estate Funds

Real Estate Capital Markets

Distressed Real Estate Transactions

Honors & Distinctions

Recommended for real estate in The Legal

500 US (2010)

Languages Spanish

Education The University of Texas at Austin (J.D. 1995; M.P. Affairs 1995, Lyndon B. Johnson School of Public Affairs; Phi Kappa Phi); Austin College (B.A. with concentration in Political Science 1991; Hatton W. Sumners Scholar)

Bar Admissions Georgia and Texas

[email protected]

Dallas 1.214.969.4586 1.214.969.5100 (F)

Susan Cox practices in the area of general real estate law with an emphasis on real estate finance, workouts and restructurings, acquisitions and dispositions of real estate and nonperforming loan portfolios, and international investments. She has provided counsel to clients in U.S. domestic transactions as well as a number of real estate transactions in Europe and Asia.

Representative transactions include: Morgan Stanley's financing of the $6.5 billion buyout of Crescent Real Estate Equities Company and the $525 million acquisition and financing of 11,000 homesites from Lennar Corp.; the workout of an over $2 billion acquisition loan as well as smaller loans ranging from $20 million to $500 million; the financing by Morgan Stanley, Onex Real Estate, and Sawyer Realty of the $1.5 billion buyout of Town and Country Trust, the subsequent sales of more than $1 billion of the corresponding Town and Country assets, and the refinancing of the remainder of the Town and Country portfolio; and the $171 million initial public offering of Thomas Properties Group, Inc.

Susan is a member of the State Bar of Texas, the State Bar of Georgia, the Dallas Bar, and CREW Dallas. Susan is a recent graduate of the Dallas Regional Chamber of Commerce "Leadership Dallas" program for 2010-2011.

Susan is a founding member of CREW Dallas' Speaker Bureau. She has served as a panelist for certain Texas Bar programs as well as a guest lecturer to the SMU School of Law topical real estate class.

KAREN GREN JOHNSON Partner

Areas of Focus Product Liability & Tort Litigation

Trial Practice

Class Action & Multidistrict Product Liability Litigation

Consumer Goods Product Liability Litigation

Honors & Distinctions Dallas Asian American Bar Association Lifetime Achievement Award; Dallas Women Lawyers Association Louise Raggio Award for "significant contributions toward advancement of women in the legal profession"; National Asian Pacific American Bar Association Trailblazer Award; State Bar of Texas Justice Chew Award recognizing "exemplary

professionalism and accomplishments"; D

Magazine's "Best Women Lawyers 2010"

and "Best Lawyers 2011", Texas

Monthly's "2011 Texas Super Lawyers"

Education Cornell University (J.D. 1982); Rice University (B.A. in Legal Studies and Political Science 1979)

Bar Admissions Texas

Government Service Judge, 95th Civil District Court, Dallas County, Texas (2001-2008), Presiding Judge (2007)

[email protected]

Dallas 1.214.969.2929 1.214.969.5100 (F)

As a former Presiding Judge of the Dallas County Civil District Judges, Karen Gren Johnson has extensive trial experience as an advocate and as a judge. Karen has represented international product manufacturers in multidistrict litigation and served as lead lawyer in multimillion dollar business disputes. Karen joined Jones Day after eight years of judicial service as a state district judge where she presided over thousands of civil cases, including more than 100 cases tried to jury verdict. During Karen's time on the bench, the Supreme Court of Texas appointed her as a multidistrict litigation judge.

Before taking the bench, Karen was in private practice for 18 years, focusing on complex tort, product liability, business, and other civil litigation in state and federal courts. She handled first-chair responsibilities in individual cases and coordinated with in-house counsel on litigation management at the local through national levels. Her first-chair case responsibilities included all aspects of case development, from investigation through trial. Karen has served on multiple bar seminar planning committees and frequently speaks on advanced litigation topics, including voir dire, discovery, expert witnesses, judge and jury persuasion, trial tactics, and ethics.

Karen has served on many nonprofit boards, including Camp John Marc, Dallas Women's Foundation, Victims Outreach, and Literacy Instruction for Texas. She was co-chair of Attorneys Serving the Community, and she co-chaired the National Asian Pacific American Bar Association's Annual Convention in 2004. She has served on the executive board of the Cornell Law Association and on the board of directors of the Association of Rice Alumni.

Ethics Do’s And Don’ts For The Dirt Lawyer Chapter 24

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TABLE OF CONTENTS

I. SCOPE .............................................................................................................................................................. 1

II. ENGAGEMENT LETTERS ............................................................................................................................. 1

III. CLIENT COMMUNICATIONS ...................................................................................................................... 3

IV. SAFE GUARDING OF CLIENT PROPERTY ................................................................................................ 3

V. WEBSITES ....................................................................................................................................................... 4

VI. DUAL PRACTICE ........................................................................................................................................... 6

VII. DOCUMENT RETENTION AND DESTRUCTION POLICIES ................................................................... 7

APPENDIX A-1 SAMPLE ENGAGEMENT LETTER ............................................................................................... 9

APPENDIX A-2 SAMPLE “I‟M NOT YOUR LAWYER LETTER ......................................................................... 12

APPENDIX B-1 TDPRC RULES ............................................................................................................................... 13

APPENDIX B-2 SAMPLE DISCLAIMERS............................................................................................................... 15

APPENDIX C SAMPLE LETTER - UPON CLOSE OF MATTER .......................................................................... 16


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ETHICS DO’S AND DON’TS FOR THE

DIRT LAWYER

I. SCOPE

The State Bar of Texas Commission for Lawyer

Discipline collects data on grievances filed against

attorneys. Commission records indicate that

approximately 7,233 grievances were filed against Texas

lawyers in the May 2009 through June 2010 reporting

period from approximately 86,500 active attorneys in

Texas. 2009-2010 STATE BAR OF TEXAS COMM. FOR

LAWYER DISCIPLINE ANN. REP. 16., 1994-2010 issued by

the Office of the Chief Disciplinary Counsel, State Bar of

Texas. Of those grievances, only 108 were classified as

related to the real estate area of law. Id. While most

grievances filed covered criminal law, family law and

personal injury practice areas, the most common

allegations across all practice areas were neglect, failure

to communicate and complaints about the termination or

withdrawal of representation – all areas that have

application to real estate lawyers. The scope of this paper

covers the ethical traps, the do‟s and don‟ts, that real

estate transactional lawyers most often see in their day to

day practice. It also deals with general practice do‟s and

don‟ts that real estate transactional lawyers will face in

running a practice.

II. ENGAGEMENT LETTERS

DON’T represent clients without comprehensive

engagement letters that clarify the attorney-client

relationship and the nature and scope of the services

to be provided.

The first thing any transactional lawyer needs to do

when engaged by a new or repeat client is to prepare and

have executed a comprehensive engagement letter.

Conflicts of interests, disputes over attorneys fees and

legal malpractice claims are, unfortunately, part of the

landscape of practicing law in this day and age. These

are also the cause of much of the general public‟s

dissatisfaction with our profession. Lawyers can avoid

many of these problems with carefully and thoroughly

drafted client engagement letters.

Engagement letters should be clear, understandable

by the client, and in compliance with the Texas

Disciplinary Rules of Professional Conduct (“TDRPC”).

An engagement letter should anticipate problems that are

likely to arise between a lawyer and a client and prevent

them by providing clear answers as to the agreement

among the parties. At a minimum, engagement letters

should address the following:

The Identity of the Client. In certain situations,

it is very important to clarify who is (and,

perhaps most importantly, who is not) the client.

For instance, lawyers representing businesses

should make clear that the company‟s

shareholders, officers, directors, members

and/or affiliates are not their client. Likewise,

prior to undertaking representation of a joint

venture, which is common in the real estate

transactional context, a lawyer should clearly

identify who the client is – the joint venture or

one of the members of the joint venture. For

joint venture representation, it may be helpful

to have each constituent joint venture partner

execute an engagement letter that states that the

lawyer is representing the joint venture and, if

applicable, allowing the same lawyer to

represent a constituent joint venture partner in

joint venture-related matters. In such a

circumstance, the engagement letter should also

specify the rights and obligations of the lawyer

representing the joint venture in the event that

disputes arise between the joint venture partners.

The joint venture member that is not

represented may be copied on the engagement

letter or a separate letter may be provided to the

member that is not represented, a so-called “I‟m

Not Your Lawyer” letter, clearly advising the

non-client of its non-client status. Clearly

identifying the client is also important in

situations where a third party is paying the legal

bills.

The Identity of the Lawyer. Just as important

as identifying the client is delineating who will

be providing the legal services. Clients often

engage lawyers with the expectation that such

lawyer will handle his or her matter. If an

associate does much or all of the work and

things do not turn out as the client expected,

conflicts with clients can arise. For this reason,

it is prudent to include a provision in an

engagement letter stating the lawyer‟s right to

allocate work to different lawyers and non-

lawyer personnel who are qualified to handle

such work. The inclusion of such a provision is

especially important when representing an

unsophisticated client who may expect that the

lawyer will personally handle the entire

representation him or herself.

The Scope of the Representation. While basic,

explaining the scope of the representation is one

element of the engagement letter that is often

overlooked, or for which sufficient time and

attention is not provided. In all circumstances,

the scope is one of those provisions in the

engagement letter that is “in the blanks” and

must be filled in by the lawyer as it is unique to

each transaction. It is also a provision that is

often "duped" from prior engagement letters


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sent to existing clients with little additional

thought as to the similarities and differences to

the prior and current transaction. Disputes

between clients and lawyers arise when the

results of a transaction do not turn out as

expected. If the scope of the representation is

not clearly delineated in the engagement letter,

the lawyer may be held responsible for the

disappointing results even if the client and

lawyer had agreed that the lawyer would not be

responsible for the services that achieved the

unfavorable results. In Texas, a lawyer may

limit the scope (as well as the objective and

general methods) of the representation as long

as the client consents to the limitation and the

representation, as so limited, does not violate

any disciplinary rules. TEX. DISCIPLINARY R.

PROF‟L CONDUCT R.1.02(b) & cmt. 5. A

lawyer may, for example, agree to represent a

client in the negotiation and acquisition of

property but not the financing or post-

acquisition assistance. Comment 5 to TDRPC

Rule 1.02(b) provides that “the client may not

be asked to agree to representation so limited in

scope as to violate Rule 1.01 (Competent and

Diligent Representation), or to surrender the

right to terminate the lawyer‟s services or the

right to settle or continue litigation that the

lawyer might wish to handle differently.” TEX.

DISCIPLINARY R. PROF‟L CONDUCT R. 1.02(b)

cmt. 5. Limiting the scope of the representation

can serve the interests of both lawyer and client.

For example, by excluding certain tasks from

the scope of the lawyer‟s services, a lawyer

may be able to undertake a representation that

otherwise would have involved a conflict of

interest. Also, unbundling services that a

lawyer provides may lower the cost of legal

services making them more readily available

and affordable to clients.

The Fee That Will be Charged. Perhaps one of

the most common causes of disputes between

lawyers and their clients relates to attorneys‟

fees, costs and expenses. A lawyer can

minimize such disputes by making a concerted

effort at the outset of the representation to

clearly articulate in the engagement letter: the

lawyers‟ compensation arrangement, how and

when the client will be billed, what the client‟s

obligations are with respect to payment and

what rights the lawyer has in the event of

nonpayment. Rule 1.04(c) of the TDRPC

provides that “[w]hen the lawyer has not

regularly represented the client, the basis or rate

of the fee shall be communicated to the client,

preferably in writing, before or within a

reasonable time after commencing the

representation.” TEX. DISCIPLINARY R. PROF‟L

CONDUCT R. 1.04(c). To remove any doubt,

the fee, or the basis for the fee, should be

communicated to the client at the outset of the

representation in an engagement letter signed

by the client and the lawyer. Though the

TDRPC does not (except for criminal cases)

specify the type of fee agreements that a lawyer

may or may not use, Rule 1.04 of the TDRPC

imposes certain limitations on the fee

agreements that lawyers may enter into as well

as specific requirements concerning particular

types of fees. TEX. DISCIPLINARY R. PROF‟L

CONDUCT R. 1.04. Both of these topics are

beyond the scope of this paper.

Additional Provisions. Additional provisions

that are often and more increasingly included in

engagement letters are: (1) consents to

conflicts and advance waivers, (2)

specifications regarding any client obligations,

and (3) ground rules for file retention.

See Appendix A-1 for a sample engagement letter with

the above-mentioned terms and additional provisions.

See Appendix A-2 for a sample “I‟m not your Lawyer”

letter. There may be other provisions that a lawyer

should include in the engagement letter and the “I‟m not

your Lawyer” letter that are based on the unique facts and

circumstances of the representation or based upon

changes in case law over time. Each lawyer should add

any additional provisions to cover the unique facts and

circumstances of such lawyer‟s matter.

If multiple parties are to be represented, a written

engagement letter is critical. While situations will vary,

the engagement letter for such a circumstance should

include additional provisions that address the

management, sharing and segregating of confidential

information between the parties; fee apportionment and

payment mechanisms; what kinds of decisions will

require client involvement; a conflict waiver; and what

happens if a dispute between the parties occurs.

Finally, it is not only important to prepare and

execute an engagement letter at the start of a new

engagement, but the engagement letter should be clear

and understandable by the client. Lawyers should help

ensure that the client understands the terms of the

engagement letter by reviewing the engagement letter

with the client. Particularly with unsophisticated clients,

it is prudent for the lawyer to go over the engagement

letter with the client orally, summarizing each paragraph

to ensure the client understands the terms of the

engagement letter and to answer any questions the client

has.


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III. CLIENT COMMUNICATIONS

DO more than just return phone calls from clients.

During each year of the last decade, the second most

common violation alleged in all grievance claims filed

with the Chief Disciplinary Counsel of the State Bar of

Texas (second only to neglect by attorneys) was failure to

communicate. State Bar of Texas, Attorney Grievance

System Statistics (1994-2010). Grievances alleging

failure to communicate made up 25% of all ethical

grievances filed during the 2009-2010 bar year. 2009-

2010 STATE BAR OF TEXAS COMM. FOR LAWYER

DISCIPLINE ANN. REP. Some argue that attorneys‟

failures to communicate with their clients are among the

greatest causes of popular dissatisfaction with the legal

profession today. Stephen E. Schemenauer, What We’ve

Got Here…Is A Failure…To Communicate: A Statistical

Analysis of the Nation’s Most Common Ethical

Complaint, 30 HAMLINE L. REV. 629, 631 (2007).

The good news is that attorneys can easily avoid

complaints of failure to communicate by (i) recognizing

that communication is a significant problem in an

attorney-client relationship and (ii) knowing the TDRPC

rules regarding client communication and following the

guidelines set forth in the comments to the same.

Rule 1.03 of the TDRPC provides:

(a) A lawyer shall keep a client reasonably

informed about the status of a matter and

promptly comply with reasonable requests for

information.

(b) A lawyer shall explain a matter to the extent

reasonably necessary to permit the client to

make informed decisions regarding the

representation.

TEX. DISCIPLINARY R. PROF‟L CONDUCT R. 1.03.

Thus, Rule 1.03 has three basic components: (i) to

keep the client reasonably informed regarding the status

of representation by volunteering information; (ii) to

promptly comply with reasonable client requests for

information relating to the representation; and (iii) to

reasonably explain the legal matter so that the client can

make informed decisions regarding the representation.

The standard of compliance with all three duties is

reasonableness. Comment 2 to Rule 1.03 provides “[t]he

guiding principle is that the lawyer should reasonably

fulfill client expectations for information consistent with

the duty to act in the client‟s best interests, and the

client‟s overall requirements to the character of the

representation.” TEX. DISCIPLINARY R. PROF‟L

CONDUCT R. 1.03 cmt. 2. Whether a lawyer has acted

reasonably is ordinarily a question of fact. See Michael V.

Bourland & David P. Dunning, Ethical Rules and Texas

Law Practice (April 24, 2003) (presented at the Advanced

Estate Planning Strategies Course April 24-25, 2003).

The most obvious thing a lawyer can do is

communicate with his or her clients on a regular basis.

This means promptly returning phone calls, letters and e-

mails. As Comment 4 to the American Bar Association

Model Rule 1.4 (the counterpart to Rule 1.03 of the

TDRPC) notes, communicating regularly with clients will

minimize clients‟ requests for information concerning the

representation. MODEL R. PROF‟L CONDUCT R. 1.4 cmt.

4. When a client does request information, if the lawyer is

too busy to respond within a reasonable time, the lawyer

or a member of the lawyer‟s staff should acknowledge

receipt of the request and advise the client when a

response may be expected. Id. In keeping with the idea

of delegating communication responsibilities, a lawyer

might also consider setting up a “tickler system,” which

would remind the lawyer when communication with a

client is due. The tickler system could be set up through

a computer e-mail and calendar software application (e.g,

Microsoft Outlook) where reminders are placed in the

lawyer‟s calendar. Lawyers should also ensure that

copies of all documents related to matters are sent to the

client at the same time they are transmitted to the other

party/opposing counsel/lender‟s counsel and should

explain the terms to the client. This should be done with

fee agreements and billing statements as well.

As to the content of communication with clients, the

TDRPC upholds the view that the “client should have

sufficient information to participate intelligently in

decisions concerning the objectives of the representation

and the means by which they are to be pursued to the

extent the client is willing and able to do so.” TEX.

DISCIPLINARY R. PROF‟L CONDUCT R.1.03 cmt. 1.

Accordingly, lawyers negotiating on behalf of a client in

a real estate transaction should provide the clients with

the relevant facts, keep them apprised of communications

with the other party and provide other pertinent

information to allow the client to accept or reject

proposed terms and conditions of the transaction. TDRPC

Rule 1.03 cmt. 1. Lawyers should generally provide

comprehensive advice concerning all possible options,

including the potential risks associated with each option.

Ultimately, lawyers can avoid complaints regarding

failure to communicate by exercising common sense and

understanding that there is no such thing as over-

communication in the client‟s eyes.

IV. SAFE GUARDING OF CLIENT PROPERTY

DO segregate client property and hold it separate

from the lawyer’s own property with the care

required of a professional fiduciary.

While title companies often provide the escrow

services in most real estate transactions, some lawyers

provide escrow services for clients. In addition, real

estate lawyers often hold client funds in connection with

a retainer for future services to be provided by the lawyer.


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In both of these cases, the real estate lawyer is holding

client property. While the failure to properly safeguard

client property represents only a small portion of the

grievances filed with the Commission, lawyers who fail

to follow the applicable TDRPC Rule, Rule 1.14

(Safekeeping Property), face severe sanctions, including

disbarment.

TDRPC Rule 1.14 provides:

(a) A lawyer shall hold funds and other

property belonging in whole or in part to

clients or third persons that are in a

lawyer‟s possession in connection with a

representation separate from the lawyer‟s

own property. Such funds shall be kept in

a separate account, segregated as a trust or

escrow account, maintained in the state

where the lawyer's office is situated, or

elsewhere with the consent of the client or

third person. Complete records of such

account funds and other property shall be

kept by the lawyer and shall be preserved

for a period of five years after termination

of the representation.

(b) Upon receiving funds or other property in

which a client or third person has an

interest, a lawyer shall promptly notify the

client or third person. Except as stated in

this Rule or otherwise permitted by law or

by agreement with the client, a lawyer

shall promptly deliver to the client or third

person any funds or other property that the

client or third person is entitled to receive

and, upon request by the client or third

person, shall promptly render a full

accounting regarding such property.

(c) When in the course of representation a

lawyer is in possession of funds or other

property in which both the lawyer and

another person claim interests, the property

shall be kept separate by the lawyer until

there is an accounting and severance of

their interest. All funds in a trust or

escrow account shall be disbursed only to

those persons entitled to receive them by

virtue of the representation or by law. If a

dispute arises concerning their respective

interests, the portion in dispute shall be

kept separate by the lawyer until the

dispute is resolved, and the undisputed

portion shall be distributed appropriately.

TEX. DISCIPLINARY R. PROF‟L CONDUCT R.1.14.

Key points to the rule include:

Lawyer and client property are to be held

separately in trust or escrow. Funds should be

held in a federally insured checking account or

investment product, such as an interest bearing

account at an investment firm. STATE BAR OF

TEXAS, A LAWYER‟S GUIDE TO CLIENT TRUST

ACCOUNTS (2010)

http://www.texasbar.com/AM/

Template.cfm?Section=Trust_Accounts&Temp

late=/CM/HTMLDisplay.cfm&ContentID=103

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Funds must be held in trust. The general rule is

“if the funds can reasonably earn interest for the

beneficiary, then they should be placed in an

individual interest-bearing trust account.”

STATE BAR OF TEXAS, A LAWYER‟S GUIDE TO

CLIENT TRUST ACCOUNTS. If the funds

cannot reasonably earn interest for the

beneficiary, then the funds may go into an

IOLTA-type account. In general, funds cannot

reasonably earn interest if the funds are to be

held for a short period of time or are nominal in

amount.

Funds must be held within the state unless the

client consents to funds being held elsewhere.

Complete records of the funds must be

maintained for a period of 5 years. When the

funds are being held as a retainer for legal

services and expenses, funds may be withdrawn

by the lawyer when earned and billed (and

assuming there is no dispute as to services

rendered). Funds so withdrawn should be

deposited into the lawyer‟s separate account.

Lawyers should assure that fees are not

withdrawn directly from the trust account (even

when earned) to pay the lawyer‟s costs and

expenses.

The Chief Disciplinary Counsel‟s Office for the

Commission has developed an online publication entitled

A Lawyer’s Guide to Client Trust Accounts. Since the

penalty for the failure to comply with Rule 1.14 is often

severe, lawyers that will hold client property should

review this helpful publication which can be accessed at

the State Bar website (www.texasbar.com) and by

clicking on “For Lawyers” and then “Resource Guides.”

V. WEBSITES

DO consider ethical obligations when developing

content and features of a lawyer or firm website.

Law firm websites have become a basic tool for

providing information to existing and potential clients.

Websites serve as 24-hour marketing tools by

highlighting the particular qualifications of lawyers or a

law firm, explaining the scope of the legal services they

provide and describing their clientele. The obvious

http://www.texasbar.com/AM/

http://www.texasbar.com/


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benefit of the information provided by a website can

diminish or disappear if the website visitor

misunderstands or is misled by website information or

features. For example, a website visitor might rely on

general legal information to answer a personal legal

question or might assume that direct electronic

communication with a lawyer implies that the lawyer

agrees to preserve the confidentiality of information

disclosed by the website visitor. Lawyers must be careful

to not include misleading information on websites, must

be mindful of the expectations created by the website and

must carefully manage inquiries invited through the

website.

Any information provided about a lawyer on a firm

website, such as (i) biographical information about

lawyers (including educational background, experience,

area of practice and contact information), (ii) information

about the firm, such as its history, experience, areas of

practice and general descriptions of prior engagements

and (iii) more specific information about a lawyer or a

firm‟s former or current clients, matters handled or

results obtained, constitutes a “communication

concerning a lawyer‟s services” and therefore is subject

to the requirements of TDRPC Rule 7.02 as well as the

prohibitions against false and misleading statements in

Rules 8.04(a)(3) (Misconduct) and 4.01(a) (Truthfulness

in Statements to Others). TEX. DISCIPLINARY R. PROF‟L

CONDUCT R. 7.02, 8.04(a)(3), 4.01(a). See Appendix B-

1 for the complete text of these rules. Together these

rules prohibit false, fraudulent or misleading statements

of law or fact. Website communications may not be false

or misleading, or omit facts such that the resulting

statement is materially misleading. To avoid misleading

website readers, information on a website should be

updated on a regular basis. In addition, the informed

consent of clients or former clients must be obtained in

order to identify current or former clients and disclose the

scope of their matters on the website, as required by

TDRPC Rule 1.05. TEX. DISCIPLINARY R. PROF‟L

CONDUCT R. 1.05. Because disclosure of client

identifying information is not being made to carry out the

representation of a client but to promote the lawyer or

law firm, disclosure of client identifying information on a

website is not normally impliedly authorized.

A website on the Internet that describes a lawyer,

law firm, or the legal services rendered by them also

constitutes an advertisement in the public media and is

thus subject to the TDRPC Rules 7.04 (Advertisements in

the Public Media) and 7.07 (Filing Requirements for

Public Advertisements). TEX. DISCIPLINARY R. PROF‟L

CONDUCT R. 7.04, 7.07. For purposes of Part VII of the

TDRPC, “website” means a single or multiple page file,

posted on a computer server, which describes a lawyer or

law firm‟s practice or qualifications, to which public

access is provided through publication of a uniform

resource locator (URL). Though there may be multiple

pages of a website, only the “intended initial access page”

(i.e., the page of the file on which navigational tools are

displayed) are subject to the rules. Under TDRPC Rule

7.04 the intended initial access page of a lawyer or law

firm‟s website must include: (i) the name of the lawyer or

law firm responsible for the content of the site and (i) the

geographic location (city or town) in which the lawyer or

law firm‟s principal office is located. TEX.

DISCIPLINARY R. PROF‟L CONDUCT R. 7.04. In addition,

if areas of law are advertised or claims of special

competence are made on the intended initial access page

or elsewhere on the site, a conspicuous disclaimer

regarding such claims in the language prescribed in

TDRPC Rule 7.04(b) must be displayed. Id. Publication

of a link to a separate page bearing the required

disclaimer or information required by Rule 7.04(b) does

not satisfy the requirements of Rule 7.04 of the TDRPC.

Id. A sample disclaimer is provided in Appendix B-2

below. There may be other revisions that a lawyer should

include in the waivers that are based on the unique facts

and circumstances of the representation or based upon

changes in case law over time.

Unless exempt thereunder, TDRPC Rule 7.07(c)

requires lawyers to submit, no later than its first posting

on the internet, a hard copy of the intended initial access

page of a website along with a fee to the Advertising

Review Committee of the State Bar of Texas. TEX.

DISCIPLINARY R. PROF‟L CONDUCT R. 7.07(c). Websites

are exempt from the filing requirement if their content is

restricted to basic information such as (i) the name of the

lawyer or firm and lawyers associated with the firm,

along with office addresses, telephone numbers and

office hours; (ii) areas of practice and/or specialization;

(iii) the date of admission of the lawyer or lawyers to the

State Bar of Texas; (iv) technical and professional

licenses granted by the state or other recognized licensing

authorities; (v) other publicly available information

concerning legal issues, not prepared or paid for by the

firm or any of its lawyers, such as news articles, legal

articles, or other legal developments or events such as

proposed or enacted rules, regulations or legislation. TEX.

DISCIPLINARY R. PROF‟L CONDUCT R. 7.07(d) Comment

6 to Rule 7.07 of the TDRPC expressly excludes all

communications not prepared to secure paid professional

employment from the rule‟s filing requirements. TEX.

DISCIPLINARY R. PROF‟L CONDUCT R. 7.07 cmt. 6.

Thus, submitting a copy of the intended initial access

page of a website to the Advertising Review Committee

of the State Bar of Texas is only necessary if it contains

non-exempt information that a lawyer or firm prepared to

solicit paying work.

In addition to the content of a website, lawyers and

firms must consider the ethical obligations of the features

of a website. Inquiries from a website visitor about legal

advice or representation may raise issues concerning: the

establishment of an attorney-client relationship, creation

of potential conflicts, maintaining confidentiality of

attorney-client communications and the unauthorized


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practice of law. Warnings, disclaimers or cautionary

statements should be conspicuously placed so as to avoid

a misunderstanding by the website visitor as to whether (i)

a client-lawyer relationship has been created; (ii) the

website visitor‟s information will be kept confidential;

(iii) legal advice has been given; or (iv) the lawyer or

firm will be prevented from representing an adverse party.

The warnings and disclaimers should be in the language

used by the particular website, reasonably understandable,

and conspicuously placed. See Appendix B-2 for sample

forms of disclaimers. There may be other provisions that

a lawyer should include in the engagement letter and the

“I‟m not your Lawyer” letter that are based on the unique

facts and circumstances of the representation or based

upon changes in case law over time. Each lawyer should

add any additional provisions to cover the unique facts

and circumstances of such lawyer‟s matter.

VI. DUAL PRACTICE

DON’T forget your ethical obligations as a lawyer if

combining the practice of law with another

occupation

The dual practice of law and another occupation is

permitted under the TDRPC. If a lawyer decides to

practice another profession beyond the scope of

practicing law (or in conjunction with his or her practice

of law), the lawyer must be aware of the ethical

implications that may be encountered. Certain ethics

rules and obligations may apply even when the lawyer is

practicing outside the scope of the legal profession. This

is particularly true if the other profession is closely

related to the practice of law (e.g., insurance agent,

business consultant, collection agent or real estate broker);

the other profession is practiced from the same office as

the legal practice; or the attorney is performing both legal

and non-legal services in the same transaction. Areas of

particular concern for attorneys engaging in the dual

practice of law and another occupation include

confidentiality of information, conflicts of interest,

independence from non-lawyers, and

advertising/solicitation.

Confidentiality of Information. If a lawyer

engages in the dual practice of law and another

profession, that lawyer must remember to keep

client information confidential. In particular,

TDRPC Rule 1.05(b)(4) prohibits the use of

privileged information of a client for the

advantage of the lawyer or of a third person,

unless the client consents after consultation.

TEX. DISCIPLINARY R. PROF‟L CONDUCT R.

1.05(b)(4). As such, a lawyer cannot use

confidential information obtained in an

attorney-client setting and claim that the

information was obtained outside the scope of

the attorney acting as an attorney. A lawyer

cannot use its non-legal business to break the

protection of the attorney-client privilege even

though non-attorneys are not held to this same

standard nor subject to this rule. Therefore, it is

important that a lawyer that is practicing

another profession must specify to the client

that the attorney is not acting as the client‟s

attorney when the lawyer is acting in a business

context and outside the legal scope. The

communication to the client as to the capacity

in which the lawyer is engaged must be clear

and explicit and preferably in writing so the

client will not blur the legal and non-legal

functions to be performed by the lawyer.

Lawyers that fail to clarify the other

professional role must maintain confidentiality

as required by TDRPC Rules.

Conflicts of Interests. TDRPC Rule 1.08(a)

prohibits lawyers from entering into business

transactions with clients unless certain

conditions are met. TEX. DISCIPLINARY R.

PROF‟L CONDUCT R. 1.08(a). In particular,

Rule 1.08(a) prohibits business transactions

with clients unless: “(1) the transaction and

terms on which the lawyer acquires the interest

are fair and reasonable to the client and are

fully disclosed in a manner which can be

reasonably understood by the client; (2) the

client is given a reasonable opportunity to seek

the advice of independent counsel in the

transaction; and (3) the client consents in

writing thereto.”

Only if the lawyer believes that the conflict is

one that can be waived, may the lawyer proceed

with the business transaction and then only if: (a) the

terms of the transaction are fair and reasonable; (b)

the client consents in writing after being informed of:

(i) the terms of the transaction, such terms being

reduced to writing in plain language that the client

can understand; (ii) the lawyer‟s financial interest;

(iii) the potentially adverse consequences of any

potential conflict; and (iv) whether the business

transaction will afford the client the protection of the

attorney client relationship.

In such a circumstance it is also prudent for the

lawyer to disclose any other available alternatives to

the provision of the non-legal business services by

the lawyer. As with the engagement letter, it is also

advisable for the lawyer to walk the client through

the written consent, carefully summarizing the terms

of each paragraph.


7

Independence from Non-Lawyers. TDRPC

Rule §5.04(a) prohibits lawyers from sharing

legal fees with non-lawyers, with limited

exceptions. TEX. DISCIPLINARY R. PROF‟L

CONDUCT R. 5.04. TDRPC Rule §5.04(b) also

prohibits lawyers from entering into

partnerships or other business arrangements

with non-lawyers if any part of the business

constitutes the practice of law. Id. In

considering business arrangements with respect

to a non-legal business, the lawyer must take

care not to allow non-lawyers any control over

the lawyer‟s legal practice and must be careful

to avoid any sharing of legal fees.

Advertising/Solicitation. Attorneys

providing non-legal services must be careful

with the manner that the attorneys advertises

their non-legal services. An attorney is not

permitted to advertise the non-legal business

services in conjunction with advertisements and

promotions of the lawyer‟s legal services. For

example, a lawyer is prohibited from

advertising a real estate business as owned by

“Attorney X” or affiliated with the "Law

Offices of Attorney X.” Ethics Opinion 119

(November 1955) provides that lawyers should

use separate letterhead for non-legal business

apart from the lawyer‟s legal business. Tex.

Comm. on Professional Ethics, Op. 119.

Specifically, the non-legal business letterhead

cannot reference that the person is an attorney,

a member of the Bar of Texas and other legal

organizations, or list in the person‟s

biographical data articles written by the

attorney addressing legal subjects in law or

trade publications. Lawyers must also carefully

observe rules regulating direct solicitation when

providing non-legal services to clients.

Lawyers may not use the second business as a

way to solicit legal clients in a manner that

violates TDRPC §7.03.

VII. DOCUMENT RETENTION AND

DESTRUCTION POLICIES

DO develop and implement a policy concerning the

retention and destruction of documents.

In Texas, the entire contents of a lawyers legal file

belong to the client, even after the matter is closed. See

Resolution Trust Corp. v. H--, P.C., 128 F.R.D. 647 (N.D.

Tex. 1989). This premises arises from TDRPC Rule

1.14(b) set forth above, which requires that the lawyer

promptly deliver to the client any property that the client

is entitled to receive, and TDRPC Rule 1.15(d), which

provides:

“Upon termination of representation, a lawyer

shall take steps to the extent reasonably

practicable to protect a client‟s interests, such

as giving reasonable notice to the client,

allowing time for the employment of other

counsel, surrendering papers and property to

which the client is entitled and refunding any

advance payments of fee that has not been

earned. The lawyer may retain papers relating

to the client to the extent permitted by other law

only if such retention will not prejudice the

client in the subject matter of the

representation.”

TEX. DISCIPLINARY R. PROF‟L CONDUCT R. 1.15(d).

Notwithstanding that clients own the files, lawyers for a

matter have a legitimate interest in maintaining client

files for at least the statute of limitations for grievance

claims against an attorney, which in Texas is four years.

TEX. R. DISCIPLINARY P. 15.06. In addition, as set forth

above, lawyers must maintain records relating to trust and

other IOLTA accounts for a period of five years. Over

time, an enormous amount of paper can be collected by

the practicing lawyer. Managing and storing this paper

can be costly. Since lawyers must comply with these

rules in spite of the cost, it is imperative that lawyers

maintain their files in a manner that will reduce the

amount of paper and safeguard the client‟s legitimate

rights to its property.

Here are some guidelines for a retention/destruction

plan to help manage the paper:

Engagement Letter. Include in the engagement

letter the lawyer‟s policy on retention and

destruction of client files. See above and

Appendix A-2 for an example of such a

provision.

Closing of Matter. As soon as possible after a

matter closes, the lawyer should:

1. Remove and return original documentation

to clients including minute books and stock

certificates; original signed closing documents;

original plats, surveys and title policies;

corporate seals; and original deeds, easements,

and other evidence of interests in real property.

2. Remove and destroy drafts and draft chains;

lawyers‟ handwritten notes that do not have

historical or other significance; research

materials available free or inexpensively from

public sources; duplicates; superseded internal

legal memoranda; blank legal pads, forms and

binders; news clippings which do not have

historical or other significance; public

information about related cases; and lawyer


8

working files to the extent duplicative of

official file material.

3. Remove and retain permanently all billing

files and related accounting information;

engagement and termination letters; new

business or conflict reports; waiver letters and

ethical wall documentation; legal opinions and

legal opinion backup memorandum;

communications with the client or internal file

disposition; communications with the client

regarding the return of any materials to the

client; memoranda from the lawyer regarding

legal advice given to, but declined by, the client;

memorandum or notes regarding allocation of

responsibility between the lawyer and the client;

and other sensitive matters.

In addition, it is helpful for the lawyer to

remind the client about its procedures regarding

document retention upon the close of a matter.

See Appendix C for a sample letter regarding

procedures for closing matters with existing

clients. There may be other provisions that a

lawyer should include in the closing letter letter

that are based on the unique facts and

circumstances of the representation or based

upon changes in case law over time. Each

lawyer should add any additional provisions to

cover the unique facts and circumstances of

such lawyer‟s matter.

Destruction of Client Files. After four years

(or earlier if authorized by the client) or five

years (for trust or escrow account records), if

the appropriate file stripping procedures have

been followed and the lawyer has confirmed

that no original documents or permanent

records remain in the file, the lawyer may

destroy the remaining records through

confidential means, unless destruction of the

records has been suspended for a pending or

anticipated proceeding or investigation.

Documents should not be placed in the trash,

but rather should be destroyed by incineration,

shredding or other suitable means to assure

against breaches of confidentiality. Documents

relating to a pending or existing proceeding or

investigation, whether in electronic, hard copy

or other format, and whether or not consisting

of drafts, handwritten notes, highlighting or

similar informal markings or materials, must be

preserved.

Increasingly, lawyers are maintaining electronic files

to manage client matters in lieu of paper files. This is

particularly true in the context of much unofficial

correspondence with clients and opposing counsel.

Electronic records should be similarly reviewed, retained,

and destroyed as required for paper copies. In addition,

since much of the correspondence is now completed over

email, senior lawyers must assure that adequate records

are maintained and preserved for client files that are

primarily handled by junior lawyers, and in particular,

must assure that the supervising lawyer has and/or the

law firm has access to, these electronic records

maintained by the junior lawyer. This is particularly

important as junior lawyers leaving the employment of

the law firm may inadvertently destroy records that are

needed for future (or efficient) client service.


9

Appendix A-1

Sample Engagement Letter

Re: Engagement Letter re [title of matter or services]

Dear [Insert Recipient Name]:

This letter confirms our discussions concerning the scope, terms and conditions of our engagement by Client A

(“Client A” or “you”) with respect to: [Insert detailed description of matter or services]. Thank you for retaining

[Firm] in this engagement and for your consideration and cooperation concerning the matters covered in this letter.

(a) Limited Scope of Engagement and Client Relationship

Any new or expanded engagement beyond that described above will require our agreement. Similarly, except as

expressly set forth in this letter, any representation in this engagement of any person or entity other than Client A, such as

a parent, subsidiary or other direct or indirect affiliate of Client A, will require our agreement. That is, our client is, and

we are entering into an attorney-client relationship only with, Client A. Please advise any of Client A’s direct or indirect

affiliates or any of your or their [Insert, as appropriate, „members, partners, managers, directors, officers‟] or other

investors or controlling persons who express any uncertainty or different understanding, that this engagement does not

include any undertaking by [Firm] to represent any of them or create any attorney/client relationship between [Firm] and

any of them.

[Insert the following if the Firm is currently adverse to an affiliate of the client: In this regard, we want to advise

you that, on behalf of Client B, we are currently adverse to Client C, {as appropriate: the/a parent, subsidiary, direct or

indirect affiliate, member, partner, manager, officer, director, other controlling person} of Client A. Because we are not

entering into an attorney/client relationship with Client C, of course, we will continue to represent Client B in that other

matter.]

(b) Staffing

You have designated [client contact] as the person from whom we will take direction and to whom we will report

in connection with this engagement. I [or other lawyer responsible for the matter] will have primary responsibility for

this engagement and will be assisted by such other lawyers and service personnel as [I/he/she] deems appropriate from

time to time in order to provide high quality services in a cost-efficient manner. I [or other lawyer responsible for the

matter] will be the Partner generally responsible for [Firm]‟s representation of Client A, including matters related to

billing and staffing.

(c) Potentially Adverse Representations or Conflicts of Interest; Advance Waiver

[Firm] represents and in the future will represent many other clients. Some may be direct competitors of Client A

or otherwise may have business interests that are contrary to Client A’s interests. It is even possible that, during the time

we are working for you, an existing or future client may seek to engage us in connection with an actual or potential

transaction or pending or potential litigation or other dispute resolution proceeding in which such client‟s interests are or

potentially may become adverse to Client A’s interests.

[Firm] cannot enter into this engagement if it could interfere with our ability to represent existing or future clients

who develop relationships or interests adverse to Client A. We therefore ask Client A to confirm that [Firm] may

continue to represent or may undertake in the future to represent any existing or future client in any matter (including but

not limited to transactions, litigation or other dispute resolutions), even if the interests of that client in that other matter are


10

directly adverse to [Firm‟s] representation of Client A, as long as that other matter is not substantially related to this or

our other engagements on behalf of Client A. In the event of our representation of another client in a matter directly

adverse to Client A, however, [Firm] lawyers or other service providers who have worked with Client A will not work

for such other client, and appropriate measures will be taken to assure that proprietary or other confidential information of

a non-public nature concerning Client A acquired by [Firm] as a result of our representation of Client A will not be

transmitted to our lawyers or others in the Firm involved in such matter.

In other words, we request that Client A confirm that (1) no engagement that we have undertaken or may

undertake on behalf of Client A will be asserted by Client A either as a conflict of interest with respect to, or as a basis to

preclude, challenge or otherwise disqualify [Firm] from, any current or future representation of any client in any matter,

including without limitation any representations in negotiations, transactions, counseling or litigation adverse to Client A,

as long as that other matter is not substantially related to any of our engagements on behalf of Client A, (2) Client A

hereby waives any conflict of interest that exists or might be asserted to exist and any other basis that might be asserted to

preclude, challenge or otherwise disqualify [Firm] in any representation of any other client with respect to any such matter,

(3) Client A has been advised by [Firm], and has had the opportunity to consult with other counsel, with respect to the

terms and conditions of these provisions and its prospective waiver, (4) Client A’s consent to these provisions is both

voluntary and fully informed, and (5) Client A intends for its consent to be effective and fully enforceable, and to be

relied upon by [Firm].

(d) Compensation and Disbursements

Our fees are generally determined by the time devoted by each lawyer or other service provider involved in the

engagement and the hourly billing rates assigned to each such person. [Currently, hourly rates for our lawyers who are

likely to be working on this matter range from $___ to $___ for partners and $___ and $____ for associates.] Our hourly

rates are revised periodically, and we reserve the right to revise them from time to time during the course of our

representation of Client A. We submit periodic billing statements (generally monthly), which are due and payable upon

presentation. In situations involving extraordinary risks, efforts or results, we may request that Client A give

consideration to a supplemental fee over and above our hourly rates. [Describe any additional fee arrangements or any

commitments to bill other than on a monthly basis.]

[Insert the following if not precluded by fee arrangement: We may require a retainer at any time, which we will

apply to any unpaid fees, disbursements and charges or as we may otherwise agree with Client A. Any unused portion of

a retainer is fully refundable when our representation is completed or terminated. {In accordance with our conversation

concerning compensation, enclosed is our statement for an initial retainer in the amount of $___.}]

Unless we specifically agree, any fee estimate that we may provide is not a commitment to perform the services

within a fixed time or for a fixed fee.

In addition to our fees, we expect our clients to defray certain costs and expenses incurred during our

representation of them. A description of our Disbursements and Charges Billing Policies is enclosed. Please note that

although our charges for non-cash costs incurred by the Firm reflect our good faith estimate of our actual, fully absorbed,

out-of-pocket costs, those estimates may differ from our actual costs. Normally, disbursements and charges will be

subject to reimbursement from Client A in the regular billing cycle. In some circumstances, however, such as in the case

of particularly large items, we may ask Client A to pay these items directly or in advance.

(e) Procedures upon Termination; Return of Documents; Intellectual Property

Unless previously terminated, our representation of Client A will terminate upon our sending you our final

statement for services rendered in this matter. In that case, or otherwise at your request, any papers and property sent by

you to us will be returned to you. Our own files pertaining to the matter, including lawyer work product and

administrative records, as well as document copies, will be retained by the Firm in accordance with our document

retention policy. All documents retained by the Firm will be transmitted in the ordinary course to the person responsible

for administering our records retention program. Subject to our obligations under the bar requirements applicable to

[lawyer responsible for the matter], we reserve the right to destroy or otherwise dispose of any documents or other

materials, including electronic versions, retained by us after the termination of the engagement.


11

All intellectual property and other know-how developed by us in connection with this engagement, including

subject matter expertise, whether or not preserved in written or electronic form, may be retained by us and used in

connection with engagements on behalf of other clients, so long as no confidential information relating to Client A is

thereby disclosed.

Please sign and return to us the enclosed copy of this letter in order to confirm that it accurately reflects the scope,

terms and conditions with respect to this engagement. If you would like to discuss any of these matters, please give me a

call.

Very truly yours,

[Firm Lawyer]

On behalf of Client A, the undersigned confirms that this letter accurately reflects the scope, terms and conditions

with respect to this engagement and that the undersigned‟s execution and delivery of this confirmation on behalf of Client

A has been duly authorized by Client A.

Dated:

Signature:

Name:

Title:


12

Appendix A-2

Sample “I‟m Not Your Lawyer Letter”

__________________________________

__________________________________

__________________________________

__________________________________

Re: [Project]

Dear [Insert Recipient Name]:

It was a pleasure to meet you last week. This letter confirms what we discussed about the relationship between

you, our client, [Client], and [Firm] concerning the [Project].

As we discussed, our only client in this matter will be [Client]. We anticipate that our firm will be preparing most

of the documents necessary to effectuate the various aspects of the [Project]. We will, of course, provide you (either

directly or, if you should decide to retain counsel, through that counsel) with draft copies of those documents to allow you

to comment on their terms, suggest changes, and generally protect your interests. In preparing documents, or doing other

work on the project, however, we will be representing only [Client] and [his/her/its] interests. If you wishes to have legal

representation in this matter, you should retain another lawyer or law firm.

We know that you have a good relationship with [Client]. However, in a venture such as the [Project], situations

could arise where [Client's] interests differ from yours. In any such circumstances, we will be representing only [Client's]

interests. You have acknowledged that you understand that to be the case.

Let me assure you that we have not sent this letter because we anticipate any hostility between you and [client]

during this venture. We expect that you will enjoy working together on this project. It is best, however, to make sure

there is no misunderstanding about relationships between our firm and those with whom we have dealings on a project.

We look forward to working with you on this project.

Sincerely yours,

[Firm Lawyer]

cc: [Client]


13

Appendix B-1

Certain Referenced TDRPC Rules

Rule 4.01(a) Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

Rule 7.02 Communications Concerning a Lawyer's Services

(a) A lawyer shall not make or sponsor 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) contains any reference in a public media advertisement to past successes or results obtained unless

(i) the communicating lawyer or member of the law firm served as lead counsel in the matter giving

rise to the recovery, or was primarily responsible for the settlement or verdict,

(ii) the amount involved was actually received by the client,

(iii) the reference is accompanied by adequate information regarding the nature of the case or matter

and the damages or injuries sustained by the client, and

(iv) if the gross amount received is stated, the attorney's fees and litigation expenses withheld from

the amount are stated as well;

(3) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that

the lawyer can achieve results by means that violate these rules or other law;

(4) compares the lawyer's services with other lawyers‟ services, unless the comparison can be substantiated

by reference to verifiable, objective data;

(5) states or implies that the lawyer is able to influence improperly or upon irrelevant grounds any tribunal,

legislative body, or public official;

(6) designates one or more specific areas of practice in an advertisement in the public media or in a

solicitation communication unless the advertising or soliciting lawyer is competent to handle legal matters

in each such area of practice; or

(7) uses an actor or model to portray a client of the lawyer or law firm.


14

(b) Rule 7.02(a)(6) does not require that a lawyer be 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 requirements of Rule 7.02(a)(6) with respect to the area(s) of practice in which such lawyer is

certified.

(c) A lawyer shall not advertise in the public media or state in a solicitation communication that the lawyer is a

specialist except as permitted under Rule 7.04.

(d) Any statement or disclaimer required by these rules shall be made in each language used in the advertisement or

solicitation communication with respect to which such required statement or disclaimer relates; provided

however, the mere 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 8.04(a) Misconduct

(a) A lawyer shall not:

(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;


15

Appendix B-2

Sample Disclaimers

Sample Specialization Disclaimer:

Lawyers resident in all offices, unless otherwise indicated in an individual attorney biography, are not certified by the

Texas Board of Legal Specialization.

Sample Website Disclaimers

The content of this web site is intended to convey general information about [Firm]. It should not be relied upon as legal

advice. It is not an offer to represent you, nor is it intended to create an attorney-client relationship. The content of any

Internet e-mail sent to [Firm] or any of its lawyers at the e-mail addresses set forth in this web site will not create an

attorney-client relationship and will not be treated as confidential.

The information contained in this website is provided for informational purposes only, and should not be construed as

legal advice on any matter. The transmission and receipt of information contained on this Web site, in whole or in part, or

communication with [Firm] via the Internet or e-mail through this website does not constitute or create a lawyer-client

relationship between us and any recipient. You should not send us any confidential information in response to this

webpage. Such responses will not create a lawyer-client relationship, and whatever you disclose to us will not be

privileged or confidential unless we have agreed to act as your legal counsel and you have executed a written engagement

agreement with [Firm].


16

Appendix C

Sample Letter - Upon Close of Matter

[Client Name]

Re: Conclusion of Representation

Dear :

We are writing to confirm that our representation in connection with the matter has been concluded.

[*Because the lawyer-client relationship between us has ceased, we ] We will have no further obligation to advise you

in connection with this matter or as to future legal developments that may have a bearing on the matter. [*However,

unless we hear from you to the contrary, we intend to keep you on our mailing list that we use to provide friends of

the firm with information as to various legal developments that may be of interest.]

Our final statement for services rendered and disbursements and other charges is enclosed. If you have questions

regarding our statement, please call me. If you believe we have any property of yours with regard to this matter or need

copies from our files, please so advise us. If we do not hear from you in the next 30 days, subject to our obligations under

the bar rules of Texas, to retain certain records relating to our relationship with you, we will consider that you have agreed

that we may destroy our files in the ordinary course of our file review and document retention policies. Should you elect

not to have the files returned to you, we will review the files in an effort to ensure that any original legal documents or

items of intrinsic value have been returned to you before we dispose of the records.

We are pleased to have had the opportunity to be of service to you in this matter. We look forward to continuing

to serve you on other matters which are included in our engagement.

Sincerely yours,

[Firm Partner]

*Use if client has no other open/active matter with firm.