The Texas Disciplinary Rules of Professional Conduct describe a lawyer’s duty to “zealously assert the client’s position” and to “zealously pursue the client’s interests” both “within the bounds of the law.”[1] Reference to the duty of zealous representation, however, is restricted to the preamble of the Texas Disciplinary Rules of Professional Conduct. There is no actual rule requiring zealous representation from an attorney. But the Texas Supreme Court continues to reference and discuss the duty of zealous representation, so it is important for Texas attorneys to understand how Texas legal authority defines the concept.
1. What is zealous representation?
Zealous representation is a phrase attorneys know well as a delineation of the standard for the attorney-client relationship. The Texas Disciplinary Rules of Professional Conduct, however, do not provide Texas attorneys with a definition for zealous representation. This has left the question of what zealous representation is up to some interpretation; “what one attorney considers zealous conduct might seem overzealous to another—or to a court or disciplinary panel.”[2]
Recently, the Texas Supreme Court stated that an attorney’s duty of “loyal” or “zealous” representation does not arise exclusively in the realm of litigation.[3] Rather, “zealous representation must occur” in all an attorney’s “professional functions.”[4] Consequently, an attorney’s obligation to provide zealous representation begins at the moment the client requests legal services and the attorney agrees to provide.[5] An attorney’s duty to furnish zealous representation persists throughout all phases of representation.
Although the duty of zealous representation might be difficult to define, the most important thing for attorneys to understand is that other professional responsibilities cannot yield to the pursuit of zealous advocacy. Attorneys must also keep in mind their explicit duties of competency, diligence, and loyalty in representing their clients. Being a zealous advocate necessarily involves being a competent, diligent, and loyal advocate.
In the course of providing zealous representation, an attorney must not violate any of the rules of professional conduct. For example, given a lawyer’s express duty of candor to the court, “misstating facts or misrepresenting the record can never be justified under the guise of zealous advocacy.”[6] In 2014, the Texas Supreme Court discussed that, although zealous advocacy is a “professional obligation,” an “attorney must not permit client desires to supersede the attorney’s obligation to maintain confidence in our judicial system.”[7] To be a successful, zealous advocate, attorneys must balance their many other professional obligations with their desire to vehemently pursue their client’s interests.
2. Protections
There are also protections designed to prevent a lawyer from being too severely hindered in her pursuit of zealous representation. For example, in Barcelo v. Elliot, the Texas Supreme Court reinforced a “privity barrier,” “which denies a cause of action to all beneficiaries whom the attorney did not represent.”[8] This restriction on who can bring a cause of action against an attorney regarding matters related to her representation of a client was designed “to ensure that attorneys [can] zealously represent their clients” without representation being compromised by the threat of suit from third parties.[9]
The privity barrier has evolved over time into the concept of attorney immunity. In 2021, the Texas Supreme Court held that “attorney immunity applies in all adversarial contexts in which an attorney has a duty to zealously and loyally represent a client.”[10] Attorney immunity, however, only applies “when the claim against the attorney is based on the [type] of conduct attorney immunity protects.”[11] The type of conduct protected by the attorney immunity defense includes conduct that “constitutes the provision of ‘legal’ services” and that “the attorney engages in to fulfill [her] duties in representing the client within an adversarial context.”[12] Importantly though, attorney immunity does not apply where client and the non-client share the same interest(s).[13]
[1] Tex. R. Prof Conduct Preamble ¶¶ 2, 3
[2] FEATURE: ZEALOUS REPRESENTATION: NO-WIN BENCHMARK FOR LAWYERS: A VIEW FROM THE CENTER FOR LEGAL ETHICS AND PROFESSIONALISM, 65 Tex. B. J. 706.
[3] Haynes & Boone, LLP v. NFTD, LLC, 631 S.W.3d 65, 79 (Tex. 2021).
[4] Id.; Tex. R. Prof Conduct Preamble ¶ 3.
[5] Haynes & Boone, 631 S.W.3d at 79
[6] Davis v. Rupe, 307 S.W.3d 528, 535 (Tex. App.—Dallas 2010, no pet.).
[7] Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 367 (Tex. 2014).
[8] 923 S.W.2d 575, 577-79 (Tex. 1996).
[9] Id. At 578-79
[10] Haynes & Boone, 631 S.W.3d at 79.
[11] Id. at 67
[12] Id. at 80.
[13] Id.
