Prejudgment Remedies in Texas - Doug D'Arche - Back to Main Page

action or transaction covered by the conflict of interest rules of the appropriate governmentagency. Tex. Disciplinary R. Prof. Conduct .10(f)(1), (2), 3.05(c)(1). A matter is pending beforea particular Court when that Court has been selected to determine the matter or when it isreasonably foreseeable that the Court will be selected to determine the matter. Tex. DisciplinaryR. Prof. Conduct 3.05(c)(2).The comments to Rule 3.05 recognize that there are certain types of adjudicatoryproceedings that have permitted pending issues to be discussed ex parte with the Court. Rule3.05 recognizes that there may be instances where an ex parte communication is permitted bythe rules. The rule is dealing with attachment (Tex. R. Civ. P. 592), garnishment (Tex. R. Civ.P. 658), temporary restraining orders (Tex. R. Civ. P. 680), sequestrations (Tex. R. Civ. P. 696),all specifically contemplate that these remedies may be obtained ex parte.Because the rules authorizing the use of these pre-judgment remedies permit the use ofex parte communications, it would appear that communications with the Court in connectionwith obtaining these extraordinary remedies is not a violation of Rule 3.05. These proceedingsappear to fall under the exception in Rule 3.05(b) that permit ex parte communications "asotherwise permitted by law…"Notwithstanding the fact that these communications are permitted, counsel is advised tobe very cautions in connection with such proceedings. All attorneys have a duty of candortoward the Court. Tex. Disciplinary R. Prof. Conduct 3.03. This rule prohibits an attorney fromknowingly making a statement of material fact to a Court. Cohn v. Commission for LawyerDiscipline, 979 S.W.2d 694 (Tex. App.—Houston [14 th Dist.] 1998, no writ).Page 36 of 36