# Tex. Disciplinary R. Prof. Conduct 1.05: Rule 1.05. also furnishes considerable protection to other information falling outside the scope > Texas · Court rules · In force URL: https://www.frixlaw.com/law-library/statutes/SRULES_TX_DISCCONDUCT_R1_05 ## Section - **Citation:** Tex. Disciplinary R. Prof. Conduct 1.05 - **Heading:** Rule 1.05. also furnishes considerable protection to other information falling outside the scope - **Jurisdiction:** Texas - **Kind:** Court rules - **Status:** In force - **Text as of:** August 14, 2026 - **Source:** Compiled text - **Location:** Texas Disciplinary Rules of Professional Conduct / Rule 1.05 ## Text RULE 1.05. also furnishes considerable protection to other information falling outside the scope of the privilege Rule 1.05 extends ethical protection generally to unprivileged information relating to the client or furnished by the client during the course of or by reason of the representation of the client. In this respect Rule 1.05 accords with general fiduciary principles of agency. 5. The requirement of confidentiality applies to government lawyers who may disagree with the policy goals that their representation is designed to advance. Disclosure for Benefit of Client 6. A lawyer may be expressly authorized to make disclosures to carry out the representation and generally is recognized as having implied-in-fact authority to make disclosures about a client when appropriate in carrying out the representation to the extent that the client’s instructions do not limit that authority. In litigation, for example, a lawyer may disclose information by admitting a fact that cannot properly be disputed, or in negotiation by making a disclosure that facilitates a satisfactory conclusion. The effect of Rule 1.05 is to require the lawyer to invoke, for the client, the attorney-client privilege when applicable; but if the court improperly denies the privilege, under paragraph (c)(4) the lawyer may testify as ordered by the court or may test the ruling as permitted by Rule 3.04(d). 7. In the course of a firms practice, lawyers may disclose to each other and to appropriate employee’s information relating to a client, unless the client has instructed that particular information be confined to specified lawyers. Sub-paragraphs (b)(l) and (c)(3) continue these practices concerning disclosure of confidential information within the firm. ling as permitted by Rule 3.04(d). 7. In the course of a firms practice, lawyers may disclose to each other and to appropriate employee’s information relating to a client, unless the client has instructed that particular information be confined to specified lawyers. Sub-paragraphs (b)(l) and (c)(3) continue these practices concerning disclosure of confidential information within the firm. 25 Use of Information 8. Following sound principles of agency law, sub-paragraphs (b)(2) and (4) subject a lawyer to discipline for using information relating to the representation in a manner disadvantageous to the client or beneficial to the lawyer or a third person, absent the informed consent of the client. The duty not to misuse client information continues after the client-lawyer relationship has terminated. Therefore, the lawyer is forbidden by sub-paragraph (b)(3) to use, in absence of the client’s informed consent, confidential information of the former client to the client’s disadvantage, unless the information is generally known. Discretionary Disclosure Adverse to Client 9. In becoming privy to information about a client, a lawyer may foresee that the client intends serious and perhaps irreparable harm. To the extent a lawyer is prohibited from making disclosure, the interests of the potential victim are sacrificed in favor of preserving the client’s information-usually unprivileged information-even though the client’s purpose is wrongful. On the other hand, a client who knows or believes that a lawyer is required or permitted to disclose a client’s wrongful purposes may be inhibited from revealing facts which would enable the lawyer to counsel effectively against wrongful action. Rule 1.05 thus involves balancing the interests of one group of potential victims against those of another. The criteria provided by the Rule are discussed below. 10. Rule 5.03 (d)(l) Texas Rules of Civil Evidence (Tex. R. Civ. Evid.), and Rule 5.03(d)(1), Texas Rules of Criminal Evidence (Tex R om revealing facts which would enable the lawyer to counsel effectively against wrongful action. Rule 1.05 thus involves balancing the interests of one group of potential victims against those of another. The criteria provided by the Rule are discussed below. 10. Rule 5.03 (d)(l) Texas Rules of Civil Evidence (Tex. R. Civ. Evid.), and Rule 5.03(d)(1), Texas Rules of Criminal Evidence (Tex R. Crim. Evid.), indicate the underlying public policy of furnishing no protection to client information where the client seeks or uses the services of the lawyer to aid in the commission of a crime or fraud. That public policy governs the dictates of Rule 1.05. Where the client is planning or engaging in criminal or fraudulent conduct or where the culpability of the lawyers conduct is involved, full protection of client information is not justified. 11. Several other situations must be distinguished. First, the lawyer may not counsel or assist a client in conduct that is criminal or fraudulent. See Rule 1.02(c). As noted in the Comment to that Rule there can be situations where the lawyer may have to reveal information relating to the representation in order to avoid assisting a client’s criminal or fraudulent conduct, and sub-paragraph (c)(4) permits doing so. A lawyer’s duty under Rule 3.03(a) not to use false or fabricated evidence is a special instance of the duty prescribed in Rule 1.02(c) to avoid assisting a client in criminal or fraudulent conduct, and sub-paragraph (c)(4) permits revealing information necessary to comply with Rule 3.03(a) or (b). The same is true of compliance with Rule 4.01. See also paragraph (f). 12. Second, the lawyer may have been innocently involved in past conduct by the client that was criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.02(c), because to counsel or assist criminal or fraudulent conduct requires knowing that the conduct is of that character with Rule 3.03(a) or (b). The same is true of compliance with Rule 4.01. See also paragraph (f). 12. Second, the lawyer may have been innocently involved in past conduct by the client that was criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.02(c), because to counsel or assist criminal or fraudulent conduct requires knowing that the conduct is of that character. Since the lawyer’s services were made an instrument of the client’s crime or fraud, the lawyer has a legitimate interest both in rectifying the consequences of such conduct and in avoiding charges that the lawyer’s participation was culpable. Sub-paragraph (c)(6) and (8) give the lawyer professional discretion to reveal both unprivileged and privileged information in order to serve those interests. See paragraph (g). In view of Tex. R. 26 Civ. Evid. Rule 5.03(d)(1), and Tex. R. Crim. Evid. 5.03(d)(1), however, rarely will such information be privileged. 13. Third, the lawyer may learn that a client intends prospective conduct that is criminal or fraudulent. The lawyer’s knowledge of the client’s purpose may enable the lawyer to prevent commission of the prospective crime or fraud. When the threatened injury is grave, the lawyer’s interest in preventing the harm may be more compelling than the interest in preserving confidentiality of information. As stated in sub-paragraph (c)(7), the lawyer has professional discretion, based on reasonable appearances, to reveal both privileged and unprivileged information in order to prevent the client’s commission of any criminal or fraudulent act. In some situations of this sort, disclosure is mandatory. See paragraph (e) and Comments 18-20. 14 erest in preserving confidentiality of information. As stated in sub-paragraph (c)(7), the lawyer has professional discretion, based on reasonable appearances, to reveal both privileged and unprivileged information in order to prevent the client’s commission of any criminal or fraudulent act. In some situations of this sort, disclosure is mandatory. See paragraph (e) and Comments 18-20. 14. The lawyers exercise of discretion under paragraphs (c) and (d) involves consideration of such factors as the magnitude, proximity, and likelihood of the contemplated wrong, the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the lawyer’s own involvement in the transaction, and factors that may extenuate the client’s conduct in question. In any case a disclosure adverse to the client’s interest should be no greater than the lawyer believes necessary to the purpose. Although preventive action is permitted by paragraphs (c) and (d), failure to take preventive action does not violate those paragraphs. But see paragraphs (e) and (f). Because these rules do not define standards of civil liability of lawyers for professional conduct, paragraphs (c) and (d) do not create a duty on the lawyer to make any disclosure and no civil liability is intended to arise from the failure to make such disclosure. 15. A lawyer entitled to a fee necessarily must be permitted to prove the services rendered in an action to collect it, and this necessity is recognized by sub-paragraphs (c)(5) and (d)(2)(iv). This aspect of the rule, in regard to privileged information, expresses the principle that the beneficiary of a fiduciary relationship may not exploit the relationship to the detriment of the fiduciary. Any disclosure by the lawyer, however, should be as protective of the client’s interests as possible. 16. If the client is an organization, a lawyer also should refer to Rule 1.13 in order to determine the appropriate conduct in connection with this Rule presses the principle that the beneficiary of a fiduciary relationship may not exploit the relationship to the detriment of the fiduciary. Any disclosure by the lawyer, however, should be as protective of the client’s interests as possible. 16. If the client is an organization, a lawyer also should refer to Rule 1.13 in order to determine the appropriate conduct in connection with this Rule. Client with Diminished Capacity 17. When representing a client who may have diminished capacity, a lawyer should review ## Nearby sections - [Tex. Disciplinary R. Prof. Conduct 1.01 Rule 1.01. Competent and Diligent Representation](https://www.frixlaw.com/law-library/statutes/SRULES_TX_DISCCONDUCT_R1_01.md) - [Tex. Disciplinary R. Prof. Conduct 1.02 Rule 1.02. 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