The Rules of Professional Conduct Apply to In-House Lawyers (2023)

Conflicts of Interest: Current Clients

Although the model rules make clear that an attorney employed or retained by an organization represents the organization acting through its duly authorized constituents (e.g., officers, directors, etc.), the rules also make clear that the attorney may represent any such constituent in addition to the organization. See, e.g., id. r. 1.13(g) (“A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents.”). However, such dual representation may present a conflict of interest between current clients. The model rules preclude an attorney from representing two or more clients if the representation of one client is directly adverse to another client, or if there is a substantial risk that the representation of a client will be materially limited by the attorney’s responsibilities to another client (unless the attorney secures the informed consent, confirmed in writing, from each affected client). See, e.g., id. r. 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent must be provided by an appropriate official of the organization other than the individual constituent who is also being represented.

This type of situation applies to outside attorneys as well and may arise, for example, in connection with litigation defense and corporate investigations, where the attorney may be

called upon to represent both the organization and certain named individuals. Such dual representations may require the informed consent, confirmed in writing, of each client to the extent that the interests of the clients potentially or actually conflict.

Conflicts of interest may also exist among entities within the corporate family. Parent and subsidiary business entities are generally considered separate legal entities. Thus, representing a parent entity does not necessarily lead to an attorney-client relationship with a subsidiary, or vice versa, for the purposes of conflict-of-interest analysis. However, where an in-house attorney does legal work for multiple entities within the corporate family, the conflict-of-interest rules may be implicated when the entities have differing ownership or after a subsidiary is sold. If the in-house attorney did substantive legal work for that subsidiary in addition to the corporate parent, the in-house attorney may have a conflict of interest, i.e., its representation of the corporate parent is adverse to that former subsidiary (such as in connection with a subsequent dispute between the corporate parent and such former subsidiary).

Conflicts of Interest: Former Clients

The model rules generally preclude an attorney from working on a matter on behalf of a client if that client’s interests are materially adverse to the interests of a former client of the attorney and the attorney represented that former client in the same or a substantially related matter (unless the attorney secures the informed consent, confirmed in writing, of the former client). See, e.g., id. r. 1.9(a). The rules also generally preclude an attorney from using confidential information relating to the representation of a former client to the disadvantage of that former client. See, e.g., id. r. 1.9(c).

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While compliance with these ethical obligations may have been obvious and routine at a law firm—with conflict checks being run on each new engagement—the attorney’s obligations are no less applicable after moving in-house. An in-house attorney may be asked or expected to work on a matter on behalf of the employer organization that is adverse to, or otherwise relates to, a former client of the in-house attorney—from when the attorney was either in private practice or at a prior in-house counsel position. This could happen, for example, if the attorney’s employer organization is commencing litigation against a former client of the attorney—and either the attorney represented that client in a matter substantially related to the litigation or the attorney has confidential information pertaining to the former client that is relevant to the litigation. In such event, the in-house attorney may be precluded from working on the litigation due to the conflict of interest with the former client. Similar issues may arise in other types of legal work as well, such as an acquisition or business transaction on behalf of the employer organization with a former client, where the former client’s confidential information might be relevant to the transaction.

Imputation of Conflicts of Interest

It may be challenging enough for an in-house attorney to manage conflicts of interest with former clients, especially without the infrastructure of a law firm conflicts check system and a database of prior engagements to reference, but it gets even more challenging when there are multiple attorneys working together in the same legal department. This is due to the possibility of imputation of conflicts of interest.

The Model Rules of Professional Conduct generally provide that the conflict of interest of one attorney in a law firm (again, defined in the Model Rules to include a legal department) is imputed to all other attorneys in the firm, such that none of them may represent a client when any one of them practicing alone would be prohibited from doing so. See, e.g., id. r. 1.10(a). As a result, if any attorney in the legal department is precluded from working on a matter adverse to a former client as described above, then all other attorneys in the legal department may also be precluded from working on such matter because that attorney’s conflict of interest might be imputed to each of them. Case law in various jurisdictions has made clear that this requirement applies to in-house attorneys. See, e.g., City & County of San Francisco v. Cobra Sols., Inc., 38 Cal. 4th 839, 847–48 (2006) (noting that the rule is intended to vicariously disqualify attorneys “working together and practicing law in a professional association”).

In an in-house legal department, just as in a law office, attorneys collaborate with one another, discuss confidential information, and work together to achieve the goals of their client (i.e., their common employer). Because the ethical considerations for attorneys in a law office and for attorneys in an in-house legal department are the same with respect to conflicts of interest, the potential disqualification of entire legal departments should be the same as it would be for law offices.

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The Model Rules, as well as the rules in some states, provide for an exception to the preclusion by imputation, where the conflicted attorney is “timely screened from any participation in the matter”—but strict compliance with the requirements for an ethical screen, including providing notice to the affected former client, would be required in order for such exception to apply. See Model Rules of Pro. Conduct r. 1.10(a)(2).

While few legal departments utilize a system for checking conflicts and approving new engagements—let alone maintaining a list of former clients—of each in-house attorney, such a system might be advisable to avoid potential violations. Further, whenever a conflict becomes apparent, the in-house attorney may need to consider some form of prophylactic or remedial action, such as creating an ethical screen, securing the informed written consent of the affected former client, or perhaps even having a nonlawyer colleague interface with outside counsel on the matter (thereby avoiding the need for in-house attorneys on such matter).

Sexual Relations with Clients

The rules of professional conduct in most states provide that an attorney may not have sexual relations with a client (unless the sexual relationship existed before the attorney-client relationship commenced). See, e.g., id. r. 1.8(j). Although this rule appears to be directed toward protecting clients who are natural persons, the rule also applies where the client is an organization. For example, comment 22 to Model Rule 1.8 makes clear that “[w]hen the client is an organization, paragraph (j) of this Rule prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters.”

As a result, if an in-house attorney’s colleague, who may work just down the hall from the attorney, “regularly consults with” the in-house attorney concerning the company’s legal matters, the in-house attorney should be mindful of this rule before initiating sexual relations with the colleague.

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The “No Contact” Rule

Attorneys are bound by the “No Contact” Rule (reflected in Model Rule 4.2), which provides

that an attorney may not communicate about the subject of a representation with a person that the attorney knows to be represented by another attorney in the matter, unless the attorney has the consent of the other attorney. Although the No Contact Rule generally prohibits an attorney from communicating with a represented person, the rule does not prevent the parties themselves

from communicating with respect to the subject matter of the representation. See, e.g., id. r. 4.2 cmt. 4 (“Parties to a matter may communicate directly with each other.”). Accordingly, the rule should not prohibit an attorney who is also a party to a legal matter from communicating on his or her own behalf with a represented person.

Similar to the other rules discussed herein, the No Contact Rule may apply differently to in-house attorneys than it does to outside attorneys. Because many in-house attorneys serve not only as attorneys but also as businesspeople—with decision-making authority acting as a principal—it is not always clear when an in-house attorney is acting as a lawyer or as a principal or client. When an in-house attorney is communicating in his or her capacity as a principal or employee of an organization (rather than as the attorney for the organization), the in-house attorney may be permitted to communicate with a represented person without the consent of the party’s attorney. However, unless it is clear that the in-house attorney is acting in a nonattorney representative capacity on behalf of the employer organization (e.g., as a party contemplated by comment 4), communication with a represented person may be prohibited.

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Failure to Act Competently

Of course, failing to act competently could be grounds for dismissal for an in-house attorney. But an in-house attorney may also be subject to discipline as well, for violation of the duty of competence, as reflected in Model Rule 1.1. Rule 1.1 obligates a lawyer to provide competent representation to a client, which includes “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Because the rule does not distinguish between in-house attorneys and those in private practice, termination of employment may not be the only result for an in-house attorney who fails to act competently!


In-house attorneys are required to abide by the ethical rules set forth in the applicable rules of professional conduct. While the ethical rules by their own terms apply to all attorneys, whether in private practice or in-house, the application of the rules to in-house attorneys can be awkward in many instances. To avoid a violation of the ethical rules, in-house attorneys—just like attorneys at law firms—must be mindful of the rules and the policies that underlie them, even though the application of some of the rules may be different or surprising in terms of their in-house practice.

Neil J. Wertlieb founded Wertlieb Law Corp. in Pacific Palisades, California. Wertlieb also teaches courses at various law schools and is senior adviser to Milbank@Harvard, a training program for Milbank associates.

Copyright © 2021, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).

(Video) Lawyer Fees & Legal Ethics pt. 1 - Model Rule 1.5


Does in house counsel need to be licensed Texas? ›

According to the Texas Board of Law Examiners, house counsel attorneys may practice in Texas without formal admission to the Texas Bar. Texas does not provide special admission rules for this authorization.

What is the rule 8.04 of the Texas disciplinary rules of professional conduct? ›

A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief, openly asserted, that no valid obligation exists.

What is the disciplinary rule of professional conduct 1.02 in Texas? ›

A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client's conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action.

What is ethical conduct by a lawyer? ›

These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.

What is the difference between legal counsel and in-house counsel? ›

Unlike lawyers at a typical law firm, in-house counsels have one and only one client—the corporation. 4 They do not represent the board of directors, principal officers, or other individuals, even though those individuals act on behalf of the corporation.

What is the difference between counsel and council in-house? ›

Council is the word for an advisory group or meeting; counsel is the word for advice, an individual giving advice or guidance, or the verb indicating such action.

What is Rule 1.08 A of the Texas Disciplinary Rules of Professional Conduct? ›

Rule 1.08 - Conflict of Interest: Prohibited Transactions (a) A lawyer shall not enter into a business transaction with a client 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 ...

What is Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct? ›

Rule 1.01 Competent and Diligent Representation

(2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances.

What is Rule 7.02 of the Texas Disciplinary Rules of Professional Conduct? ›

Rule 7.02 - Advertisements (a) An advertisement of legal services shall publish the name of a lawyer who is responsible for the content of the advertisement and identify the lawyer's primary practice location.

What is Rule 5.03 of the Texas Disciplinary Rules of Professional Conduct? ›

A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product.

What is Rule 3.08 of Texas Disciplinary Rules of Professional Conduct? ›

Rule 3.08 - Lawyer as Witness (a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client, ...

What is the Texas Rule of Professional Conduct 4.04 B 1? ›

An additional requirement, set out in Rule 4.04(b)(1), is that “[a] lawyer shall not present, participate in presenting, or threaten to present: (1) criminal or disciplinary charges solely to gain an advantage in a civil matter . . . .” Thus, Rule 4.04(b)(1) prohibits the lawyer from reporting the possibly illegal ...

What are 3 different ethical rules that lawyers must follow? ›

The concepts that are typically relevant to clients are:
  • Confidentiality: A lawyer should preserve the confidences of a client. ...
  • Competence: An attorney must represent a client with the utmost competence. ...
  • Professional Judgement: A lawyer should exercise independent professional judgement on behalf of a client.
May 21, 2020

What is unethical for a lawyer? ›

Attorney misconduct may include: conflict of interest, overbilling, refusing to represent a client for political or professional motives, false or misleading statements, knowingly accepting worthless lawsuits, hiding evidence, abandoning a client, failing to disclose all relevant facts, arguing a position while ...

What is an ethical conflict with an attorney? ›

If there is a “significant risk” that the lawyer's interest in the matter will cause the lawyer to materially limit the representation of the client, then there is a conflict and the lawyer may not undertake the representation absent informed consent from the client.

What does of counsel mean after an attorney's name? ›

“Of Counsel” Definition: ABA Formal Opinion 90-357 (1990)

90-357 defines the “Of Counsel” professional designation as a “close, regular, personal relationship” with a lawyer or law firm that is other than that of a partner or associate or the equivalent of a partner or associate.

What does it mean when a lawyer calls counsel? ›

To counsel is to provide legal advice or guidance to someone on specific subject matter. Counsel is also a lawyer giving advice about a legal matter and representing clients in court.

What does it mean when a lawyer wants counsel? ›

As a noun, counsel is a synonym for advice, but it can also mean the act of giving that advice or refer to a person who gives legal advice. In fact, a lawyer who goes to trial for you is your counsel. That lawyer would counsel you.

Does in house counsel have privilege? ›

(1968) 263 Cal. App. 2d 41. Confidential In-House Counsel attorney-client communications are deemed privileged unless the “dominant purpose” was something other than legal advice.

What is the difference between in house and outside counsel? ›

The main difference between in-house counsel and outside legal counsel is that the in-house counsel is an employee of the company. The lawyer has no other clients. He works solely for the company handling all legal matters for the business.

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The General Counsel is the senior lawyer of a company. There are many alternate titles for this position such as In House Counsel, Chief Legal Officer, Corporate Counsel, and Chief Legal Counsel. There are many sources that can potentially provide the name of the General Counsel.

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Texas Disciplinary Rules of Professional Conduct. (a) A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable.

What is Rule 26.3 of the Texas Rules of Appellate Procedure? ›

Rule 26.3 provides a 15-day grace period: The time to file the notice may be extended if, within 15 days after the deadline, a party files the notice and a motion to extend time. If a party files the notice but not a motion within the grace period, a criminal case will be dismissed but a civil case will not.

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  • Conduct research and analysis of legal problems.
  • Interpret laws, rulings, and regulations for individuals and businesses.
Sep 8, 2022

What is the ethics rule 4.01 in Texas? ›

Failure to Disclose A Material Fact

Generally, in the course of representing a client a lawyer has no duty to inform a third person of relevant or material facts, except as required by law or by applicable rules of practice or procedure, such as formal discovery.

What is Rule 14 of professional conduct? ›

Any attack on the validity of a subpoena so issued shall be heard and determined by the chair of the hearing committee before which the matter is pending or by the court wherein enforcement of the subpoena is being sought. Any resulting order is not appealable prior to entry of a final order in the proceeding.

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(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally or substantially as a public officer or employee, unless the appropriate government agency consents after consultation.

What is the rule of professional conduct 7.03 in Texas? ›

(c) A lawyer shall not send, deliver, or transmit, or knowingly permit or cause another person to send, deliver, or transmit, a communication that involves coercion, duress, overreaching, intimidation, or undue influence.

What is Rule 34.6 of the Texas Rules of Appellate Procedure? ›

Rule 34.6 - Reporter's Record (a)Contents. (1) Stenographic Recording. If the proceedings were stenographically recorded, the reporter's record consists of the court reporter's transcription of so much of the proceedings, and any of the exhibits, that the parties to the appeal designate.

What is Rule 25.1 of the Texas Rules of Appellate Procedure? ›

Rule 25.1 - Civil Cases [Effective until June 1, 2023] (a)Notice of Appeal. An appeal is perfected when a written notice of appeal is filed with the trial court clerk.

What is Rule 52.10 A of the Texas Rules of Appellate Procedure? ›

Rule 52.10 - Temporary Relief (a)Motion for Temporary Relief; Certificate of Compliance. The relator may file a motion to stay any underlying proceedings or for any other temporary relief pending the court's action on the petition.

What is Ohio Rules of Professional Conduct 1.7 A )( 1? ›

Rule 1.7 - Conflict of Interest: Current Clients (a) A lawyer's acceptance or continuation of representation of a client creates a conflict of interest if either of the following applies: (1) the representation of that client will be directly adverse to another current client; (2) there is a substantial risk that the ...

What is the right to counsel in Texas? ›

The United States Constitution and the Texas Constitution and statutes guarantee the right to counsel for anyone accused of a crime that could result in incarceration who cannot afford to hire an attorney.

Is Texas a mandatory bar association? ›

Unlike the American Bar Association (ABA), the State Bar of Texas (SBOT) is a mandatory bar.

Can an out of state attorney practice in Texas? ›

Who can practice law in Texas? Only licensed attorneys in good standing with the State Bar of Texas and other persons with special permission from the Texas Supreme Court may practice law in Texas.

Can an attorney take a real estate commission in Texas? ›

No. The Real Estate License Act (TRELA) prohibits brokers from sharing fees received for services as a real estate agent with anyone not licensed as a real estate broker or salesperson in Texas or any other state.

What is an example of right of counsel? ›

If you are charged with a crime for which you face potential time in jail, then you have the constitutional right to have a lawyer to assist you in your defense. And if you can't afford to hire that lawyer on your own, then the government must provide you with a qualified attorney at public expense.

What does the right to counsel contained? ›

The right to counsel refers to the right of a criminal defendant to have a lawyer assist in his defense, even if he cannot afford to pay for an attorney. The Sixth Amendment gives defendants the right to counsel in federal prosecutions.

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The right to an attorney protects people from an unfair trial. The success of a person's trial largely depends on the ability of their attorney to provide an adequate defense. The Supreme Court of the United States affirmed that the right to counsel promises an effective lawyer.

Can you practice law in Texas without passing the bar? ›

Eligibility Requirements

In order to be licensed in Texas without taking the Texas Bar Examination, you must demonstrate that you: Hold a J.D. from an ABA-approved U.S. law school or satisfy each element of a Rule 13 exemption from the law study requirement. Are licensed to practice law in another state.

Can you take the Texas bar exam without a law degree? ›

No, you can't take the bar without attending Texas law school. Currently, Texas is not one of the states that allow a person to take the bar exam without attending law school.

Who regulates lawyers in Texas? ›

The State Bar of Texas is the agency with authority to regulate attorneys in Texas. If you have a complaint about the actions of an attorney, contact the State Bar's Grievance Committee at (800) 932-1900.

What are examples of unauthorized practice of law? ›

If someone gives legal advice without a license, that's called the unauthorized practice of law (UPL.) In California, only attorneys can give legal advice. If an attorney loses their license to practice, but continues to take and advise clients, that's also considered the unauthorized practice of law.

Can a lawyer drop a client in Texas? ›

In nonlitigation matters, withdrawal may often be achieved by asking for and receiving the client's consent or even by simply terminating the relationship by letter. For litigation matters, however, the court is required to approve the withdrawal, subject to satisfaction of various notice and filing requirements.

Is Texas a good state for lawyers? ›

Texas ranks in the top half of our rankings for each metric we considered, with average income for lawyers as its highest-ranking metric. In 2018, the average annual income for lawyers in Texas was $150,250.

Can a realtor give a kickback to a buyer in Texas? ›

Kickbacks are an illegal real estate practice. The Real Estate Settlement and Procedures Act (RESPA) of 1974 addresses kickbacks and made them illegal. Specifically, individuals are prohibited from accepting monetary or items of value from mortgage lenders to give lenders more business that they didn't earn.

Can a power of attorney sell a house in Texas? ›

Yes. This special power of attorney allows your agent to sign a deed for the property. This kind of power of attorney must include a legal description of the property you want to sell. You must record a power of attorney in the deed records of the county where the property is located.

What is Section 15 of the Texas real estate Licensing Act? ›

Section 15(a) of the Act provides that the Texas Real Estate Commission ("TREC") may suspend or revoke a license issued under the provisions of the Act at any time when it has been determined that any one of several provisions of the Act have been violated.


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