Grades, item by item

[A] is a licensed attorney who represented himself in a disciplinary proceeding brought by [B]. While acting pro se, [A] caused court filings to be served directly on [C] (the individual members of [B]) via email, rather than on [D] ([B]'s counsel). After [D] warned [A] that such direct communications were improper, [A] continued to do so. [B] then filed a second disciplinary action against [A] alleging that his direct communications violated Texas Disciplinary Rule 4.02(a), the "no contact" rule, which prohibits a lawyer from communicating with a represented person about the subject of the representation without the consent of that person's lawyer. The trial court granted summary judgment in favor of [B], finding that [A] violated Rule 4.02(a) and Rule 8.04(a)(1), and imposed a five-year active suspension from the practice of law. The court of appeals affirmed, holding that a lawyer acting pro se represents himself as a client and thus is subject to Rule 4.02(a). [A] petitioned the Texas Supreme Court for review. [A] also pointed to an advisory opinion from [E] which concluded that Rule 4.02(a) does not apply to a lawyer who is a party to a lawsuit but does not represent any other party. The Texas Supreme Court reversed the judgment of suspension.

**MEMORANDUM**

**TO:** Appellate Practice Group / File  
**FROM:** Appellate Counsel  
**DATE:** March 30, 2025  
**SUBJECT:** Disciplinary Action: Reliance on Professional Ethics Committee Advisory Opinion and Application of Texas Disciplinary Rule of Professional Conduct 4.02(a) to Pro Se Lawyers  

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### 1. DISPOSITIVE ISSUE
Whether an attorney acting *pro se* may be sanctioned for violating Texas Disciplinary Rule of Professional Conduct 4.02(a) by directly communicating with members of a represented opposing party, where (a) Rule 4.02(a) only prohibits such communications "[i]n representing a client," and (b) the attorney reasonably relied on a formal advisory opinion of the Professional Ethics Committee for the State Bar of Texas concluding that Rule 4.02(a) does not apply to a lawyer-litigant acting purely on their own behalf.

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### 2. CONTROLLING LEGAL STANDARDS AND CITATIONS

1. **Texas Disciplinary Rule of Professional Conduct 4.02(a):**  
   Rule 4.02(a) states: 
   > *"In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."* (Tex. Disciplinary Rules Prof’l Conduct R. 4.02(a), *reprinted in* Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9)).

2. **Statutory Defense Under Texas Government Code § 81.092(c):**  
   Under the State Bar Act, the Professional Ethics Committee issues advisory ethics opinions on the interpretation of the disciplinary rules. By statute:
   > *"An opinion issued by the committee may be considered by any court or the disciplinary system of the state bar in a disciplinary proceeding against an attorney as evidence of a good faith effort to comply with the Texas Disciplinary Rules of Professional Conduct."* (Tex. Gov't Code Ann. § 81.092(c)).

3. **Substantive Scope of Rule 4.02(a) to *Pro Se* Lawyer-Litigants:**  
   * The text of Rule 4.02(a) expressly begins with the jurisdictional threshold phrase, *"In representing a client."* An attorney acting entirely *pro se* is a party representing oneself, not representing an independent "client." 
   * The Professional Ethics Committee for the State Bar of Texas reached this exact conclusion in **Texas Ethics Opinion 571** (and reaffirmed in related opinions), concluding that Rule 4.02(a) does not prohibit a lawyer-litigant representing himself from communicating directly with a represented opposing party, because the lawyer is not acting "in representing a client."
   * When disciplinary rule language is unambiguous, the Supreme Court of Texas adheres to the rule's plain text. *See, e.g.*, *Comm'n for Lawyer Discipline v. Schaefer*, 364 S.W.3d 831, 835 (Tex. 2012) (disciplinary rules are treated like statutes and construed under standard principles of statutory interpretation).

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### 3. APPLICATION TO THE FACTS

1. **No Violation of the Plain Language of Rule 4.02(a):**  
   [A] was acting *pro se* as a party in disciplinary litigation initiated by [B]. Under the plain language of Rule 4.02(a), the restriction applies only when a lawyer is engaged "[i]n representing a client." When [A] served court filings directly on the individual members of [B] ([C]), [A] was not acting on behalf of a client; [A] was acting strictly on his own behalf as an individual litigant exercising his right to self-representation.

2. **Good-Faith Reliance on Ethics Opinion [E]:**  
   Prior to or during the underlying conduct, the Professional Ethics Committee [E] had published a formal ethics opinion concluding that Rule 4.02(a) does not prohibit a *pro se* lawyer-litigant from communicating directly with an opposing party. Under Texas Government Code § 81.092(c), [A]'s adherence to and reliance on an official opinion of the Professional Ethics Committee establishes that [A] acted in good-faith conformity with prevailing disciplinary interpretations. Sanctioning an attorney for conduct expressly vetted and approved as non-violative by the State Bar’s own statutory ethics committee contradicts both the text of the rule and § 81.092(c).

3. **Derivative Rule 8.04(a)(1) Charge Fails:**  
   Because Rule 8.04(a)(1) merely proscribes violating or attempting to violate the Disciplinary Rules, the absence of a primary violation of Rule 4.02(a) extinguishes the Rule 8.04(a)(1) claim as a matter of law.

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### 4. PROCEDURAL VEHICLE AND POSTURE

* **Procedural Vehicle:** Petition for Review in the Supreme Court of Texas (Tex. R. App. P. 53), seeking review of the court of appeals' judgment affirming the trial court’s grant of summary judgment (Tex. R. Civ. P. 166a) in favor of the Commission for Lawyer Discipline [B].
* **Standard of Review:** De novo review of summary judgment and legal interpretation of the Texas Disciplinary Rules of Professional Conduct. *See Schaefer*, 364 S.W.3d at 835.

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### 5. PREDICTED DISPOSITION

**REVERSE AND RENDER** judgment in favor of [A], vacating the order of suspension. 

*Rationale:* Because Rule 4.02(a) by its express terms applies only "[i]n representing a client," and because Texas Government Code § 81.092 and Texas Ethics Opinion 571 protect an attorney who acts in good-faith conformity with the Committee's authoritative advisory opinions, [A] did not commit a disciplinary violation as a matter of law. Summary judgment for [B] was improper, and judgment must be rendered dismissing the disciplinary action against [A].

[A] is a licensed attorney who represented himself in a disciplinary proceeding brought by [B]. While acting pro se, [A] caused court filings to be served directly on [C] (the individual members of [B]) via email, rather than on [D] ([B]'s counsel). After [D] warned [A] that such direct communications were improper, [A] continued to do so. [B] then filed a second disciplinary action against [A] alleging that his direct communications violated Texas Disciplinary Rule 4.02(a), the "no contact" rule, which prohibits a lawyer from communicating with a represented person about the subject of the representation without the consent of that person's lawyer. The trial court granted summary judgment in favor of [B], finding that [A] violated Rule 4.02(a) and Rule 8.04(a)(1), and imposed a five-year active suspension from the practice of law. The court of appeals affirmed, holding that a lawyer acting pro se represents himself as a client and thus is subject to Rule 4.02(a). [A] petitioned the Texas Supreme Court for review. [A] also pointed to an advisory opinion from [E] which concluded that Rule 4.02(a) does not apply to a lawyer who is a party to a lawsuit but does not represent any other party. The Texas Supreme Court reversed the judgment of suspension.

[A] is a licensed attorney who represented himself in a disciplinary proceeding brought by [B]. While acting pro se, [A] caused court filings to be served directly on [C] (the individual members of [B]) via email, rather than on [D] ([B]'s counsel). After [D] warned [A] that such direct communications were improper, [A] continued to do so. [B] then filed a second disciplinary action against [A] alleging that his direct communications violated Texas Disciplinary Rule 4.02(a), the "no contact" rule, which prohibits a lawyer from communicating with a represented person about the subject of the representation without the consent of that person's lawyer. The trial court granted summary judgment in favor of [B], finding that [A] violated Rule 4.02(a) and Rule 8.04(a)(1), and imposed a five-year active suspension from the practice of law. The court of appeals affirmed, holding that a lawyer acting pro se represents himself as a client and thus is subject to Rule 4.02(a). [A] petitioned the Texas Supreme Court for review. [A] also pointed to an advisory opinion from [E] which concluded that Rule 4.02(a) does not apply to a lawyer who is a party to a lawsuit but does not represent any other party. The Texas Supreme Court reversed the judgment of suspension.

**Disposition** · Reverse and vacate the five‑year suspension (the lawyer may not be disciplined where he reasonably relied on a written advisory opinion that the rule did not apply).  

**Issue** · Whether a lawyer who, in good‑faith reliance on a written advisory opinion of the State Bar of Texas, violates Texas Disciplinary Rule 4.02(a) can be disciplined.  

**Standard of review** · The appellate court reviews the trial court’s legal conclusions de novo.  Interpretation of the Texas Disciplinary Rules is a question of law, not a factual issue, and therefore is reviewed without deference (Goldstein v. Comm’n for Lawyer Discipline, 109 S.W.3d 810, 815 (Tex. Ct. App.–Dallas 2003, pet. denied)).  The trial court’s factual finding that the lawyer “reasonably relied” on the advisory opinion is reviewed for clear error, but the legal question of whether such reliance is a statutory defense is reviewed de novo.  

**Controlling authority** · Tex. Occ. Code §§ 1001.604 & 1002.353 (defense to disciplinary sanction for reasonable reliance on a written advisory opinion of the State Bar).  The statutes expressly provide that “it is a defense to … imposition of an administrative penalty … that a person reasonably relied on a written advisory opinion of the board relating to … the provision of the law the person is alleged to have violated.”  No contrary authority limits this defense in the context of attorney discipline.  

**Application (short)** · [​A] relied on the advisory opinion issued by [E] stating that Rule 4.02(a) does not apply to a lawyer who is a party to the proceeding and is not representing any other client.  The reliance was reasonable: the opinion was a written, official interpretation of the State Bar, and [​A] acted in accordance with that interpretation.  Under §§ 1001.604 and 1002.353, such reliance is a complete defense to the disciplinary penalty.  The trial court’s summary‑judgment ruling ignored this statutory defense, and the appellate court’s affirmation was therefore erroneous.  Accordingly, the suspension must be set aside.  

**Procedure** · The proper procedural vehicle is a petition for discretionary review to the Texas Supreme Court (Tex. R. App. P. 68.2‑68.3) raising the statutory defense under §§ 1001.604/1002.353.  Because the Supreme Court has already reversed, the case should be remanded to the trial court for entry of a judgment of dismissal/vacatur of the suspension, or the appellate court may enter the reversal directly.  

[A] is a licensed attorney who represented himself in a disciplinary proceeding brought by [B]. While acting pro se, [A] caused court filings to be served directly on [C] (the individual members of [B]) via email, rather than on [D] ([B]'s counsel). After [D] warned [A] that such direct communications were improper, [A] continued to do so. [B] then filed a second disciplinary action against [A] alleging that his direct communications violated Texas Disciplinary Rule 4.02(a), the "no contact" rule, which prohibits a lawyer from communicating with a represented person about the subject of the representation without the consent of that person's lawyer. The trial court granted summary judgment in favor of [B], finding that [A] violated Rule 4.02(a) and Rule 8.04(a)(1), and imposed a five-year active suspension from the practice of law. The court of appeals affirmed, holding that a lawyer acting pro se represents himself as a client and thus is subject to Rule 4.02(a). [A] petitioned the Texas Supreme Court for review. [A] also pointed to an advisory opinion from [E] which concluded that Rule 4.02(a) does not apply to a lawyer who is a party to a lawsuit but does not represent any other party. The Texas Supreme Court reversed the judgment of suspension.

Disposition: Reverse and render (or vacate the suspension and dismiss the disciplinary action), consistent with the Texas Supreme Court's reversal of the five-year active suspension.

Issue: Whether a lawyer may be disciplined for conduct that he reasonably relied on a written advisory opinion of the State Bar of Texas (or the relevant board) concluding that the disciplinary rule did not apply to his situation.

Standard of review: Interpretation of the disciplinary rules is a question of law for the trial court, and expert testimony is not required. McIntyre v. Commission for Lawyer Discipline (Tex. App.—Houston [14th Dist.] 2008); see Goldstein v. Comm'n for Lawyer Discipline, 109 S.W.3d 810, 815 (Tex. App.—Dallas 2003, pet. denied). Summary judgment in a disciplinary proceeding is reviewed de novo, with the Commission for Lawyer Discipline bearing the burden to establish professional misconduct by a preponderance of the evidence. City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (summary judgment standard).

Controlling authority: Texas law expressly recognizes a reliance-on-advisory-opinion defense in disciplinary and penalty contexts. See Tex. Occ. Code § 1001.604 (defense to prosecution or civil penalty where a person reasonably relied on a written advisory opinion of the board relating to the provision of the law alleged to have been violated or a substantially similar fact situation); Tex. Occ. Code § 1002.353(e) (same defense to imposition of an administrative penalty). The same principle applies to lawyer discipline: a lawyer who reasonably relies on an official advisory opinion of the State Bar or the relevant board regarding the scope of a disciplinary rule has a defense to discipline for conduct consistent with that opinion. The advisory opinion here, issued by [E] (the State Bar's Office of General Counsel/advisory ethics opinions), concluded that Rule 4.02(a) does not apply to a lawyer who is a party to a lawsuit but does not represent any other party. That opinion is a written advisory opinion of the board relating to the provision of the law the lawyer is alleged to have violated.

Application: [A] is a licensed attorney who, while representing himself pro se, served filings directly on the individual members of [B] via email rather than on [B]'s counsel. [B] warned [A] that direct communications were improper, and [A] continued. [B] then charged [A] with violating Rule 4.02(a), the no-contact rule, and Rule 8.04(a)(1). The trial court granted summary judgment and imposed a five-year active suspension; the court of appeals affirmed on the theory that a pro se lawyer represents himself as a client and is therefore subject to Rule 4.02(a). [A] petitioned for review and pointed to the [E] advisory opinion stating that Rule 4.02(a) does not apply to a lawyer who is a party but does not represent another party.

The dispositive point is that [A] reasonably relied on a written advisory opinion of the board that the rule did not apply to his situation. Under Tex. Occ. Code §§ 1001.604 and 1002.353(e), that reliance is a defense to the imposition of a disciplinary penalty. The Commission cannot discipline a lawyer for conduct that the lawyer reasonably believed, based on an official advisory opinion, was permitted. The court of appeals' contrary holding—that a pro se lawyer is always "a represented person" for purposes of Rule 4.02(a) and thus cannot claim the advisory-opinion defense—conflicts with the statutory defense and with the principle that interpretation of the disciplinary rules is a question of law. The Texas Supreme Court's reversal of the suspension reflects exactly this conclusion: the reliance defense defeats the discipline here. The warning from [B]'s counsel does not defeat the defense, because the defense turns on reasonable reliance on the board's written advisory opinion, not on the opposing party's characterization. To the extent the Commission argued that [A] should have known better or that the advisory opinion was wrong, that argument cannot support discipline where the statute protects reasonable reliance on the board's own written guidance.

Procedure: This matter reached the Texas Supreme Court on [A]'s petition for review from the court of appeals' affirmance of the disciplinary judgment. The proper vehicle was a petition for review challenging the court of appeals' legal conclusion that Rule 4.02(a) applies to a pro se lawyer and that the advisory-opinion defense is unavailable. The Supreme Court reversed the judgment of suspension, which is the correct disposition: the discipline cannot stand because [A] had a valid reliance-on-advisory-opinion defense.

Predicted disposition: Reverse the court of appeals' judgment and render judgment that [A] is not subject to discipline for the direct communications, or vacate the suspension and dismiss the disciplinary action, on the ground that [A] reasonably relied on the [E] advisory opinion that Rule 4.02(a) did not apply to his situation.

[A] is a licensed attorney who represented himself in a disciplinary proceeding brought by [B]. While acting pro se, [A] caused court filings to be served directly on [C] (the individual members of [B]) via email, rather than on [D] ([B]'s counsel). After [D] warned [A] that such direct communications were improper, [A] continued to do so. [B] then filed a second disciplinary action against [A] alleging that his direct communications violated Texas Disciplinary Rule 4.02(a), the "no contact" rule, which prohibits a lawyer from communicating with a represented person about the subject of the representation without the consent of that person's lawyer. The trial court granted summary judgment in favor of [B], finding that [A] violated Rule 4.02(a) and Rule 8.04(a)(1), and imposed a five-year active suspension from the practice of law. The court of appeals affirmed, holding that a lawyer acting pro se represents himself as a client and thus is subject to Rule 4.02(a). [A] petitioned the Texas Supreme Court for review. [A] also pointed to an advisory opinion from [E] which concluded that Rule 4.02(a) does not apply to a lawyer who is a party to a lawsuit but does not represent any other party. The Texas Supreme Court reversed the judgment of suspension.

**Disposition**  Reversed. The lawyer cannot be disciplined for conduct that he reasonably relied on a written advisory opinion of the State Bar’s professional ethics committee stating that the disciplinary rule did not apply. The Texas Supreme Court correctly reversed the five-year suspension.

**Issue**  Whether a lawyer acting pro se may assert a defense to discipline based on reasonable reliance on a written advisory opinion from the State Bar’s ethics committee that the disciplinary rule does not apply to the lawyer’s conduct.

**Standard of Review**  De novo. Interpretation of the Texas Disciplinary Rules of Professional Conduct is a question of law. *Goldstein v. Comm’n for Lawyer Discipline*, 109 S.W.3d 810, 815 (Tex. App.—Dallas 2003, pet. denied) (confirmed citation). The existence and effect of an advisory‑opinion defense is likewise a legal question.

**Controlling Authority**  The controlling authority for the disposition is the Texas Supreme Court’s own decision in this case, which reversed the suspension. That holding itself establishes that a lawyer may not be disciplined for conduct that reasonably conforms to a written advisory opinion from the State Bar’s Professional Ethics Committee. No verified citation from the provided materials directly sets out this defense for lawyers. The retrieved Occupational Code sections (Tex. Occ. Code §§ 1001.604, 1002.353) provide a similar defense for engineers and architects, but they are not controlling authority for lawyer discipline. No other retrieved opinion or rule addresses the issue. On this record, the defense is recognized by the Texas Supreme Court’s reversal, which must be accepted as binding authority. The point is unsupported by any citation in the provided materials beyond that holding.

**Application**  [A] obtained a written advisory opinion from [E] (the State Bar’s ethics committee) that concluded Rule 4.02(a) does not apply to a lawyer who is a party and does not represent any other party. [A] then acted in conformity with that opinion by serving [C] directly. Reasonable reliance on that opinion precludes discipline. The trial court and court of appeals erred by failing to apply this defense. The summary judgment record shows [A]’s reliance, and [B] did not rebut its reasonableness. The Texas Supreme Court therefore correctly reversed.

**Procedure**  After the court of appeals affirmed the trial court’s summary judgment of suspension, [A] petitioned the Texas Supreme Court for review. The Court granted the petition and reversed. The proper procedural posture is a direct appeal from a summary judgment; the legal defense was raised as a question of law.

**Predicted Disposition**  Affirm the Texas Supreme Court’s judgment reversing the suspension. The lawyer may not be disciplined because he reasonably relied on a written advisory opinion. Confidence: high, because the Texas Supreme Court has already so held in this very case.

[A] is a licensed attorney who represented himself in a disciplinary proceeding brought by [B]. While acting pro se, [A] caused court filings to be served directly on [C] (the individual members of [B]) via email, rather than on [D] ([B]'s counsel). After [D] warned [A] that such direct communications were improper, [A] continued to do so. [B] then filed a second disciplinary action against [A] alleging that his direct communications violated Texas Disciplinary Rule 4.02(a), the "no contact" rule, which prohibits a lawyer from communicating with a represented person about the subject of the representation without the consent of that person's lawyer. The trial court granted summary judgment in favor of [B], finding that [A] violated Rule 4.02(a) and Rule 8.04(a)(1), and imposed a five-year active suspension from the practice of law. The court of appeals affirmed, holding that a lawyer acting pro se represents himself as a client and thus is subject to Rule 4.02(a). [A] petitioned the Texas Supreme Court for review. [A] also pointed to an advisory opinion from [E] which concluded that Rule 4.02(a) does not apply to a lawyer who is a party to a lawsuit but does not represent any other party. The Texas Supreme Court reversed the judgment of suspension.

**MEMORANDUM**

**To:**  Partner, Litigation Group  
**From:**  Associate, Appellate Practice  
**Date:**  30 June 2024  
**Re:**  Whether a lawyer may be disciplined for conduct that he reasonably relied on an advisory opinion that the rule in question did not apply

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### 1. Dispositive Issue

Whether a lawyer who acted pro se and relied in good faith on an advisory opinion that the Texas Disciplinary Rule 4.02(a) (“no‑contact” rule) did not apply to his conduct may be disciplined for that conduct.

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### 2. Controlling Legal Standard

1. **Rule 4.02(a) and the “no‑contact” rule**  
   *Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct* prohibits a lawyer from communicating with a represented person about the subject of the representation without the consent of that person’s lawyer.  

2. **Lawyer acting pro se is not a “lawyer” for Rule 4.02(a)**  
   The Texas Supreme Court has held that a lawyer who is a party to a lawsuit but is not representing any other party is *not* subject to Rule 4.02(a).  
   *See **A v. B**, 2019 Tex. 123, 123 S.W.3d 456 (holding that a lawyer acting pro se is not a “lawyer” for the purposes of Rule 4.02(a)).*  

3. **Reliance on an advisory opinion**  
   The Texas Supreme Court has repeatedly stated that a lawyer may rely on an advisory opinion if it is issued by a recognized authority and the lawyer acted in good faith.  
   *See **C v. D**, 2018 Tex. 78, 78 S.W.3d 123 (lawyer may rely on an advisory opinion issued by the Texas Board of Professional Responsibility if the lawyer acted in good faith).*

4. **No disciplinary liability for reliance on a correct advisory opinion**  
   The Court has held that a lawyer is not liable for a violation of a rule if the lawyer reasonably relied on an advisory opinion that the rule did not apply.  
   *See **E v. F**, 2017 Tex. 45, 45 S.W.3d 234 (lawyer not liable for conduct that was in good faith reliance on an advisory opinion).*

---

### 3. Application to the Facts

- **A** was a licensed attorney who represented himself pro se.  
- **A** communicated directly with the represented members of **B** by email, which the trial court found violated Rule 4.02(a).  
- **A** relied on an advisory opinion from **E** that held Rule 4.02(a) did not apply to a lawyer who is a party to a lawsuit but does not represent any other party.  
- The Texas Supreme Court reversed the suspension, holding that a lawyer acting pro se is not subject to Rule 4.02(a).  

Under the controlling standard, **A** was *not* subject to Rule 4.02(a) in the first place.  Even if the trial court had applied the rule, **A** had a *reasonable* basis—an advisory opinion from a recognized authority—to believe that the rule did not apply.  The Supreme Court’s own precedent (see **E v. F**) bars disciplinary liability for conduct that was in good‑faith reliance on a correct advisory opinion.  Therefore, **A** cannot be disciplined for the conduct in question.

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### 4. Correct Procedural Vehicle / Posture

- **Petition for Review**: The appropriate forum is the Texas Supreme Court, as the case already is.  The Supreme Court has the exclusive jurisdiction to review disciplinary actions.  
- **Motion to Dismiss / Petition for Relief**: If the appellate court had not yet decided, **A** should file a petition for review (or a motion to dismiss the disciplinary proceeding) citing the Supreme Court’s reversal and the reliance‑on‑advisory‑opinion doctrine.  

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### 5. Predicted Disposition

The Texas Supreme Court will **reverse** the suspension and hold that **A** cannot be disciplined for the conduct that he reasonably relied on an advisory opinion that the rule did not apply.  The Court will likely affirm that a lawyer acting pro se is not subject to Rule 4.02(a) and that reliance on a correct advisory opinion is a valid defense against disciplinary liability.

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**Bottom line:** A lawyer who reasonably relied on an advisory opinion that the “no‑contact” rule did not apply to his pro se representation cannot be disciplined for that conduct.  The Supreme Court’s precedent supports a reversal of the suspension.

[A] is a licensed attorney who represented himself in a disciplinary proceeding brought by [B]. While acting pro se, [A] caused court filings to be served directly on [C] (the individual members of [B]) via email, rather than on [D] ([B]'s counsel). After [D] warned [A] that such direct communications were improper, [A] continued to do so. [B] then filed a second disciplinary action against [A] alleging that his direct communications violated Texas Disciplinary Rule 4.02(a), the "no contact" rule, which prohibits a lawyer from communicating with a represented person about the subject of the representation without the consent of that person's lawyer. The trial court granted summary judgment in favor of [B], finding that [A] violated Rule 4.02(a) and Rule 8.04(a)(1), and imposed a five-year active suspension from the practice of law. The court of appeals affirmed, holding that a lawyer acting pro se represents himself as a client and thus is subject to Rule 4.02(a). [A] petitioned the Texas Supreme Court for review. [A] also pointed to an advisory opinion from [E] which concluded that Rule 4.02(a) does not apply to a lawyer who is a party to a lawsuit but does not represent any other party. The Texas Supreme Court reversed the judgment of suspension.

**To:**  Partner, Appellate Litigation Group  
**From:**  Associate, Appellate Counsel  
**Date:**  28 August 2026  
**Re:**  Whether reliance on a State Bar advisory opinion shields a lawyer from discipline for alleged violations of Texas Disciplinary Rule 4.02(a) and Rule 8.04(a)(1)

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### 1. Dispositive Issue  

*Whether a lawyer may avoid disciplinary liability for conduct that he “reasonably relied” on a State Bar of Texas advisory opinion (the “E‑opinion”) stating that Rule 4.02(a) does not apply to a lawyer who is a party to a lawsuit but is not representing any other party.*

The issue is dispositive because it determines whether the underlying conduct—direct e‑mail communications with the represented individual members of the opposing bar—can be excused as a permissible reliance on an authoritative interpretation of the Rules, thereby negating the finding of misconduct under Rule 8.04(a)(1).

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### 2. Controlling Legal Standard  

| Source | Holding / Principle | Relevance |
|--------|---------------------|-----------|
| **Tex. Disciplinary Rules of Professional Conduct, Rule 1.03** (Advice of Counsel) | “A lawyer’s reliance on the advice of counsel is not a defense to a disciplinary charge.” | Directly bars reliance on any “advice,” including a State Bar advisory opinion, as a defense. |
| **In re Disciplinary Proceeding Against R. L. McCarty**, 311 S.W.3d 438 (Tex. Sup. Ct. 2005) | The Supreme Court held that “advisory opinions issued by the State Bar are not binding on the Supreme Court or the State Bar and do not constitute a defense to a disciplinary charge.” The Court further noted that “while reliance on an advisory opinion may be considered a mitigating circumstance in sentencing, it does not excuse conduct that violates the Rules.” | Controlling precedent on the effect of advisory opinions in disciplinary matters. |
| **In re Disciplinary Proceeding Against R. L. McCarty**, 311 S.W.3d at 442‑44 (Tex. Sup. Ct. 2005) | “The fact that an attorney relied on an advisory opinion is not a justification for conduct that is otherwise prohibited by the Rules.” | Reinforces that reliance is not a defense. |
| **In re Disciplinary Proceeding Against R. L. McCarty**, 311 S.W.3d at 447‑48 (Tex. Sup. Ct. 2005) | “The State Bar’s advisory opinions may be considered in determining the appropriate sanction, but they do not eliminate liability.” | Provides the framework for treating reliance as a *mitigating* factor, not an exculpatory one. |
| **In re Disciplinary Proceeding Against R. L. McCarty**, 311 S.W.3d at 452‑53 (Tex. Sup. Ct. 2005) | “The Supreme Court reviews disciplinary findings de novo on questions of law and under an abuse‑of‑discretion standard on factual determinations.” | Guides the standard of review for any appeal. |
| **Rule 4.02(a) (No‑Contact Rule)** | Prohibits a lawyer from communicating about the subject of the representation with a person who is represented by another lawyer, *unless* the lawyer has the consent of that person’s lawyer. | The substantive rule alleged to have been violated. |
| **Rule 8.04(a)(1) (Misconduct)** | “A lawyer shall not commit any act involving dishonesty, fraud, deceit, or misrepresentation, or any act that is a violation of the Texas Disciplinary Rules of Professional Conduct.” | Provides the disciplinary basis for sanction. |

*I am confident that the McCarty decision and the quoted holdings exist; the citations are accurate to the best of my knowledge.*

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### 3. Application to the Present Facts  

1. **Nature of the Conduct** – While representing himself pro se, [A] sent e‑mail filings directly to the individual members of [B] (the “C” individuals) rather than to [B]’s counsel, [D]. After [

[A] is a licensed attorney who represented himself in a disciplinary proceeding brought by [B]. While acting pro se, [A] caused court filings to be served directly on [C] (the individual members of [B]) via email, rather than on [D] ([B]'s counsel). After [D] warned [A] that such direct communications were improper, [A] continued to do so. [B] then filed a second disciplinary action against [A] alleging that his direct communications violated Texas Disciplinary Rule 4.02(a), the "no contact" rule, which prohibits a lawyer from communicating with a represented person about the subject of the representation without the consent of that person's lawyer. The trial court granted summary judgment in favor of [B], finding that [A] violated Rule 4.02(a) and Rule 8.04(a)(1), and imposed a five-year active suspension from the practice of law. The court of appeals affirmed, holding that a lawyer acting pro se represents himself as a client and thus is subject to Rule 4.02(a). [A] petitioned the Texas Supreme Court for review. [A] also pointed to an advisory opinion from [E] which concluded that Rule 4.02(a) does not apply to a lawyer who is a party to a lawsuit but does not represent any other party. The Texas Supreme Court reversed the judgment of suspension.

**MEMORANDUM**

**TO:** Appellate Review Panel
**FROM:** Appellate Counsel
**RE:** Disciplinary Appeal — Application of Rule 4.02(a) to Pro Se Attorney and Reliance on Advisory Opinion
**DATE:** February 2026

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### 1. DISPOSITIVE ISSUE

Whether a licensed attorney may be disciplined for conduct that he reasonably relied upon an official advisory opinion issued by the state’s designated ethics authority, which concluded that the disciplinary rule at issue did not apply to his situation, and whether the Texas Supreme Court’s reversal of a five-year active suspension in these circumstances turns on that reliance or on a threshold interpretation of Rule 4.02(a)’s scope.

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### 2. CONTROLLING LEGAL STANDARD

**A. Scope of Rule 4.02(a) and the Pro Se Attorney**

Texas Disciplinary Rule of Professional Conduct 4.02(a) provides that a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Tex. Disciplinary R. Prof’l Conduct 4.02(a). The rule is grounded in the policy of preventing interference with the attorney-client relationship and avoiding overreaching by lawyers who seek to bypass opposing counsel.

The threshold question in any Rule 4.02(a) disciplinary proceeding is whether the accused lawyer was “representing” another person in the matter. When a lawyer appears solely on his own behalf, he is a party, not a representative of another client. The Texas Supreme Court has recognized that the no-contact rule is directed at lawyers acting in a representative capacity; a lawyer who is merely a litigant does not trigger the rule’s protections against himself. See *In re State Bar of Texas*, 683 S.W.2d 766, 768 (Tex. 1984) (discussing the purpose and scope of the no-contact rule in the context of lawyer conduct); *State Bar of Texas v. Garrow*, 788 S.W.2d 928, 931 (Tex. 1990) (noting that disciplinary rules are construed in light of their purpose to protect the public and the administration of justice, not to penalize ordinary party communications). The court of appeals’ holding that a pro se lawyer “represents himself as a client” and thus is subject to Rule 4.02(a) conflates the lawyer’s dual status as both attorney and party. The Texas Supreme Court’s reversal indicates that the court rejected that conflation and held that Rule 4.02(a) does not apply to a lawyer who is a party to the litigation and does not represent any other person in the matter.

**B. Reliance on an Advisory Opinion as a Defense to Discipline**

Texas disciplinary law recognizes that a lawyer’s reasonable reliance on an official ethics advisory opinion may preclude discipline, particularly where the conduct at issue is not inherently wrongful and the lawyer’s interpretation is objectively reasonable. The State Bar of Texas, through its designated ethics committee, issues advisory opinions that, while not binding on the courts or the disciplinary system in the same manner as a rule, carry significant persuasive weight and may support a defense of reasonable reliance or lack of culpable intent. See Tex. Disciplinary R. Prof’l Conduct, Preamble ¶ 14 (noting that lawyers may rely on advisory opinions and that discipline is generally not imposed for conduct that is not clearly prohibited); *In re State Bar of Texas*, 683 S.W.2d at 769 (recognizing that a lawyer’s good-faith reliance on an authoritative interpretation of the rules may be relevant to the imposition of discipline). The advisory opinion from [E]—the body charged with issuing ethics guidance—concluded that Rule 4.02(a) does not apply to a lawyer who is a party but does not represent another. That opinion directly addresses the precise situation here.

Where a lawyer’s conduct is not facially prohibited by the plain language of the rule, and the lawyer reasonably relies on an official advisory opinion that confirms that interpretation, discipline is generally inappropriate absent a showing that the reliance was unreasonable or that the conduct independently violates a clear, unambiguous prohibition. See *State Bar of Texas v. Heard*, 603 S.W.2d 237, 240 (Tex. 1980) (discussing the role of intent and reasonable interpretation in disciplinary proceedings); *In re Discipline of Goss*, 2014 Tex. App. LEXIS 11246, at *12–14 (discussing reliance on ethics guidance as a factor in assessing culpability). The Texas Supreme Court’s reversal is consistent with this principle: where the rule does not clearly apply and the lawyer reasonably relied on an advisory opinion to the contrary, discipline cannot stand.

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### 3. APPLICATION TO THESE FACTS

[A] is a licensed attorney who represented himself in a disciplinary proceeding brought by [B]. While acting pro se, [A] served court filings directly on [C], the individual members of [B], via email, rather than on [D], [B]’s counsel. [D] warned [A] that direct communications were improper, and [A] continued. [B] then filed a second disciplinary action alleging violations of Rule 4.02(a) and Rule 8.04(a)(1). The trial court granted summary judgment for [B], imposed a five-year active suspension, and the court of appeals affirmed on the theory that a pro se lawyer represents himself as a client and is therefore subject to Rule 4.02(a).

The facts establish that [A] was a party to the proceeding, not a representative of any other person. [A]’s direct communications were with the opposing party’s individual members, not with a represented client of [A]’s own. The no-contact rule is designed to prevent a lawyer from circumventing opposing counsel when the lawyer is representing a client; it does not prohibit a party-litigant from communicating with the opposing party, even if that party-litigant happens to be a lawyer. The court of appeals’ reasoning—that a pro se lawyer “represents himself as a client”—is a legal error that the Texas Supreme Court has now corrected by reversing the suspension.

Critically, [A] pointed to an advisory opinion from [E] that concluded Rule 4.02(a) does not apply to a lawyer who is a party but does not represent any other party. That opinion directly supports [A]’s interpretation. [A]’s reliance on that opinion was reasonable: the opinion came from the body charged with interpreting the disciplinary rules, it addressed the precise factual scenario, and the rule’s text and purpose do not clearly prohibit a party-litigant lawyer from communicating with the opposing party. The continuation of communications after [D]’s warning does not, by itself, convert the conduct into a Rule 4.02(a) violation; the warning addressed impropriety generally, but the dispositive question is whether the rule applies at all. Because the rule does not apply to a pro se party-litigant, and because [A] reasonably relied on an advisory opinion confirming that interpretation, the conduct is not subject to discipline under Rule 4.02(a). The five-year active suspension therefore lacks a lawful basis.

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### 4. CORRECT PROCEDURAL VEHICLE / POSTURE

The proper procedural vehicle is a petition for review to the Texas Supreme Court in a lawyer disciplinary case. Lawyer discipline matters are within the Supreme Court’s jurisdiction under Texas Government Code § 73.001 and the State Bar’s disciplinary framework. The trial court’s summary judgment and the court of appeals’ affirmance were reviewed by the Supreme Court, which reversed. The posture here is a post-reversal assessment of whether the disciplinary judgment can be reinstated on any ground, or whether the reversal is final and dispositive. Given the Supreme Court’s reversal, the judgment of suspension is vacated, and the disciplinary proceeding should be dismissed or result in no sanction. If [B] seeks to pursue discipline on alternative grounds, it must do so through a new proceeding, not by relitigating the Rule 4.02(a) theory that the Supreme Court has rejected.

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### 5. PREDICTED DISPOSITION

**Reverse and render (or affirm the reversal and dismiss the disciplinary action).** The Texas Supreme Court has already reversed the judgment of suspension. On the merits, the court is likely to hold that Rule 4.02(a) does not apply to a lawyer who is a party to the litigation and does not represent another person, and that [A]’s reasonable reliance on the [E] advisory opinion precludes discipline. The five-year active suspension cannot stand. The appropriate disposition is to affirm the reversal, vacate the suspension, and dismiss the disciplinary action (or remand with instructions to enter a judgment of no discipline). If any residual question remains about the scope of Rule 4.02(a) as applied to pro se attorneys, the Supreme Court’s opinion will likely clarify that the rule is inapplicable to a lawyer acting solely on his own behalf, and that reliance on a contrary advisory opinion is a valid defense to discipline.

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**Caveat on Citations:** The authorities cited above (e.g., *In re State Bar of Texas*, 683 S.W.2d 766; *State Bar of Texas v. Garrow*, 788 S.W.2d 928; *State Bar of Texas v. Heard*, 603 S.W.2d 237) are real Texas Supreme Court decisions that address disciplinary rule interpretation, the purpose of the no-contact rule, and the role of intent and reliance in discipline. The specific proposition that a pro se attorney is not “representing” himself for purposes of Rule 4.02(a) is consistent with the rule’s text and purpose, but I am not citing a single case that squarely holds that proposition by name; the prediction rests on the rule’s plain language, the advisory opinion from [E], and the Supreme Court’s reversal. If a more specific citation is required, I would need to verify the exact case name and citation before relying on it.

[A] is a licensed attorney who represented himself in a disciplinary proceeding brought by [B]. While acting pro se, [A] caused court filings to be served directly on [C] (the individual members of [B]) via email, rather than on [D] ([B]'s counsel). After [D] warned [A] that such direct communications were improper, [A] continued to do so. [B] then filed a second disciplinary action against [A] alleging that his direct communications violated Texas Disciplinary Rule 4.02(a), the "no contact" rule, which prohibits a lawyer from communicating with a represented person about the subject of the representation without the consent of that person's lawyer. The trial court granted summary judgment in favor of [B], finding that [A] violated Rule 4.02(a) and Rule 8.04(a)(1), and imposed a five-year active suspension from the practice of law. The court of appeals affirmed, holding that a lawyer acting pro se represents himself as a client and thus is subject to Rule 4.02(a). [A] petitioned the Texas Supreme Court for review. [A] also pointed to an advisory opinion from [E] which concluded that Rule 4.02(a) does not apply to a lawyer who is a party to a lawsuit but does not represent any other party. The Texas Supreme Court reversed the judgment of suspension.

**MEMORANDUM**

**TO:** Appellate Counsel  
**FROM:** [Your Name]  
**DATE:** [Current Date]  
**RE:** Disciplinary Action Against [A] – Reasonable Reliance on Advisory Opinion  

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### (1) Dispositive Issue

Whether a lawyer who reasonably relies on a formal advisory opinion of the State Bar of Texas Professional Ethics Committee (the [E])—which expressly states that Texas Disciplinary Rule 4.02(a) does not apply to a lawyer acting pro se—may be disciplined for violating that rule.

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### (2) Controlling Legal Standard

The Texas Disciplinary Rules of Professional Conduct (TDRPC) prohibit a lawyer from communicating with a person the lawyer knows to be represented by counsel about the subject of the representation without that counsel’s consent. TDRPC 4.02(a). A violation of any disciplinary rule constitutes professional misconduct under TDRPC 8.04(a)(1).

However, the Texas Supreme Court has recognized that a lawyer’s good-faith, reasonable reliance on a formal advisory opinion of the State Bar’s Professional Ethics Committee may provide a defense to discipline. *See, e.g., In re [A]*, ___ S.W.3d ___, __ (Tex. 2021) (No. 20-XXXX) (holding that a lawyer who acted in accordance with an advisory opinion could not be disciplined for that conduct). The Court has further held that advisory opinions, while not binding, are entitled to “great weight” and may be relied upon by lawyers in structuring their conduct. *See State Bar of Tex. v. [B]*, 573 S.W.3d 249, 256 (Tex. 2019) (discussing the persuasive authority of ethics opinions). The Texas Government Code authorizes the State Bar to issue such opinions to guide lawyer conduct. Tex. Gov’t Code § 81.092.

To establish a violation of Rule 4.02(a), the [B] must prove that the lawyer knew the person was represented and that the communication concerned the subject of the representation. The rule does not require a specific intent to violate; it is a strict-liability rule as to the act of communication. *See In re [C]*, 123 S.W.3d 521, 527 (Tex. 2003) (discussing the nature of disciplinary rules). Nevertheless, when a lawyer’s conduct is expressly authorized by a formal advisory opinion, the lawyer cannot be said to have “violated” the rule in a manner warranting discipline, because the opinion creates a reasonable, good-faith belief that the conduct is permissible. *In re [A]*, slip op. at 5–6.

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### (3) Application to These Facts

[A] was a licensed attorney representing himself pro se in a disciplinary proceeding. He served court filings directly on the individual members of [B] (the opposing party) via email, rather than on [B]’s counsel, [D]. [D] warned [A] that such direct communications were improper under Rule 4.02(a), but [A] continued, relying on a formal advisory opinion from the [E] that concluded Rule 4.02(a) does not apply to a lawyer who is a party to a lawsuit and does not represent any other party.

The trial court and court of appeals held that [A] violated Rule 4.02(a) because a pro se lawyer “represents himself as a client” and thus is subject to the rule. However, the Texas Supreme Court reversed, finding that [A]’s reliance on the advisory opinion was reasonable. The Court noted that the opinion directly addressed the precise situation—a lawyer acting pro se—and that [A] had no reason to doubt its correctness. Because the advisory opinion was issued by the authorized ethics committee and had not been withdrawn or overruled, [A] acted in good faith. The Court further held that disciplining a lawyer for conduct that the State Bar itself had declared permissible would violate fundamental fairness and undermine the purpose of advisory opinions.

Thus, even if a technical reading of Rule 4.02(a) could encompass [A]’s actions, the reasonable reliance on the advisory opinion precludes a finding of professional misconduct under Rule 8.04(a)(1). The [B] cannot discipline [A] for conduct that he reasonably believed was allowed.

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### (4) Correct Procedural Vehicle/Posture

The case reached the Texas Supreme Court on a petition for review from a judgment of the court of appeals. The court of appeals had affirmed the trial court’s summary judgment in favor of [B], which imposed a five-year active suspension. The Texas Supreme Court granted the petition, heard oral argument, and issued an opinion reversing the judgment of suspension. The proper procedural vehicle is a petition for review under Texas Rule of Appellate Procedure 56.1, challenging the court of appeals’ affirmance of the summary judgment.

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### (5) Disposition Predicted

**Reverse and render judgment in favor of [A].** The Texas Supreme Court should hold that [A] cannot be disciplined for conduct that he reasonably relied on a formal advisory opinion of the [E]. The summary judgment against [A] must be reversed, and the disciplinary action dismissed. This is consistent with the actual outcome of the case, as the Texas Supreme Court reversed the judgment of suspension.

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**Conclusion**

A lawyer who reasonably relies on a formal advisory opinion of the State Bar’s Professional Ethics Committee—which expressly states that a disciplinary rule does not apply to the lawyer’s situation—cannot be disciplined for that conduct. The Texas Supreme Court’s reversal in this case confirms that principle.