ISSUED BY THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS Opinion No. 646, November 2014 QUESTION PRESENTED As a condition for allowing criminal defense lawyers to obtain information in the prosecutor’s file, may a prosecutor require defense lawyers to agree not to show or provide copies of the information to their clients and agree to waive courtordered discovery in all of the lawyers’ cases? Statement of Facts A district attorney requires criminal defense lawyers to sign a confidentiality agreement as a condition to granting lawyers access to the prosecutor’s file (a so-called “open file” arrangement). The agreement allows lawyers to obtain discoverable information in the prosecutor’s file in exchange for their agreeing not to share copies of that information with anyone else, including the lawyers’ clients, and their agreeing not to seek court-ordered discovery in any of their clients’ cases. Discussion Professional Ethics Committee Opinion 619 (June 2012) addressed the question of whether a prosecutor may require and defense counsel may agree “that documents the prosecutor produces to defense counsel may be shown to the defendant but that copies of the documents may not be given to the defendant[.]” The opinion observed: “Although the prosecutor has an obligation under Rule 3.09(d) [of the Texas Disciplinary Rules of Professional Conduct] to disclose to the defense all exculpatory or mitigating evidence, the Rule is silent as to the disclosure of other evidence and as to restrictions that may be placed on evidence and information disclosed.” This committee concluded in Opinion 619 that the Texas Disciplinary Rules of Professional Conduct permit such agreements, provided that, before signing such an agreement, defense lawyers must comply with their duties under Rule 1.03(b) to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Since this committee issued Opinion 619, the legislature passed and the governor signed the Michael Morton Act, codified at Tex. Code Crim. Proc. art. 39.14. Effective January 1, 2014, the act amended article 39.14 of the Texas Code of Criminal Procedure to require that prosecutors disclose all information in a prosecutor’s file except the prosecutor’s work product and other information (such as information about victims and children) that is made confidential by law. Among other things, article 39.14 permits discovery and copying of all witness statements, not just the defendant’s statement. Cf. Tex. R. Evid. 615(a) (requiring production of a statement of a witness other than the defendant only after the witness has been passed for cross-examination during trial). Furthermore, article 39.14 does not require (or permit a prosecutor to require) any concession by criminal defense lawyers or their clients in order to receive such discovery nor must defendants seek a court order to secure the discovery mandated by that article. Article 39.14(a) requires the disclosure of the prosecutor’s file “as soon as practicable after receiving a timely request from the defendant . . . .” Comment 1 to Rule 3.09 states that “a prosecutor is obliged to see that the defendant is accorded procedural justice, that the defendant’s guilt is decided upon the basis of sufficient evidence, and that any sentence imposed is based on all unprivileged information known to the prosecutor.” Furthermore, Rule 8.04(a)(12) provides that a lawyer shall not “violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.” Because article 39.14 requires an “open file” policy by prosecutors without pre-conditions, prosecutors would violate Rule 8.04(a)(12) if they refused to produce and permit the inspection of their file in accordance with the provisions of article 39.14 unless defense lawyers first agreed to waive certain rights of their clients. Under article 39.14—and, therefore, under Rule 8.04(a)(12)— prosecutors are required to produce and permit the inspection of their files, subject only to the limitations set forth in article 39.14. Thus, prosecutors would violate Rule 8.04(a)(12) if they attempted to impose conditions not found in article 39.14 before making the required disclosures. The committee concludes that the Michael Morton Act has rendered Opinion 619 obsolete because the act requires an “open file” policy by all Texas prosecutors without requiring defendants or their lawyers to agree to any restrictions on their use of materials in the file except as provided in the act. Conclusion The Texas Disciplinary Rules of Professional Conduct require prosecutors to comply with the Michael Morton Act, Tex. Code Crim. Proc. art. 39.14, including making disclosures required by the act. Therefore, prosecutors may not, as a condition for providing information in their files they are obligated to disclose, require that criminal defense lawyers agree not to show or provide copies of the information to their clients, nor require that criminal defense lawyers agree to waive court-ordered discovery in all of their clients’ cases. Opinion No. 647, November 2014 QUESTION PRESENTED Under the Texas Disciplinary Rules of Professional Conduct, may a Texas lawyer provide pro bono legal services through a law firm organized by the lawyer as a non-profit corporation under a name that describes the type of legal services that will be provided and includes the name of a person who has never been a lawyer in the law firm? Statement of Facts A Texas lawyer wishes to provide pro bono legal services to children with autism. The lawyer, who is motivated by his own experience with an autistic granddaughter, desires to assist children with autism and their families in navigating the public school system. All of the lawyer’s services will be provided free of charge through a law firm organized as a non-profit corporation. The lawyer proposes to name the law firm “Jane’s Law Firm, A Free Legal Resource for Children with Autism.” “Jane” is the name of the lawyer’s granddaughter but is not the name of a lawyer who has ever been in the firm. Discussion Rule 7.01(a) of the Texas Disciplinary Rules of Professional Conduct states, in relevant part: “A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that . . . if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. . . .” Rule 7.01(a) provides other exceptions that are not relevant here. The Disciplinary Rules do not define the term “trade name.” In Commission for Lawyer Discipline v. C.R., 54 S.W.3d 506, 515 (Tex. App.—Fort Worth 2001, pet. denied), the court, in construing Rule 7.01, observed: “A trade name is a designation that is adopted and used by a person either to designate a good he markets, a service he renders, or a business he conducts.” In this case, the lawyer proposes to practice under a name that would violate Rule 7.01(a) in three respects. First, the proposed name constitutes a trade name. Second, the proposed name is misleading as to the identity of the lawyer practicing under the name because “Jane” is the name of the lawyer’s granddaughter, not the lawyer. Finally, the proposed name contains the name of someone who has never been a lawyer in the firm. Rule 7.01(a) does not permit a lawyer to provide legal services through a law firm organized by the lawyer as a non-profit corporation under a name that describes the type of legal services to be provided and that includes the name of a relative of the lawyer who has a condition that is the focus of the non-profit corporation but who has never been a lawyer in the firm. Consequently, in the circumstances considered, the lawyer would not be permitted to provide legal services through a non-profit corporation formed by him under the name “Jane’s Law Firm, A Free Legal Resource for Children with Autism.” Conclusion Under the Texas Disciplinary Rules of Professional Conduct, a Texas lawyer in private practice may not provide pro bono legal services through a law firm organized by the lawyer as a non-profit corporation under a name that describes the type of legal services that will be provided and includes the name of a person who has never been a lawyer in the law firm. The Supreme Court of Texas appoints the nine members of the Professional Ethics Committee from members of the bar and the judiciary. The court also appoints the committee’s chair. According to Section 81.092(c) of the Texas Government Code, “Committee opinions are not binding on the Supreme Court.”
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