Before You Hire Counsel Know the Duties and Define the Mission

A guide to intake, attorney duties, client authority, and defining representation through identification of the rights and interests at stake.

A spouse or parent should understand the attorney–client relationship before a crisis makes every decision urgent. Legal representation can affect marriage, parental authority, children’s daily lives, and family resources. The client needs to understand counsel’s duties, identify the rights and interests at stake, and agree on the work counsel will undertake.

This article addresses prospective clients generally, with particular attention to a respondent facing a divorce or related parenting proceeding. Informed participation helps the relationship work. It does not transfer the lawyer’s professional responsibilities to the client or excuse inadequate explanations.

Understand the relationship before contacting counsel

The client is the principal; counsel acts as an agent within the authority conferred by the engagement and applicable law. Counsel also owes fiduciary obligations arising from the relationship of trust. Professional expertise does not give the lawyer ownership of the client’s lawful objectives. [1–2]

Distinguish five matters. Objectives are the lawful results sought. Scope identifies the work accepted. General methods concern the overall approach. Technical tactics ordinarily involve counsel’s professional judgment. Reserved decisions include settlement acceptance, subject to applicable law. Rule 1.02 recognizes client decisions concerning objectives and general methods; its commentary recognizes broad tactical discretion while also recognizing client wishes about expense and effects on others. [1]

The client cannot require unlawful conduct. Counsel may decline work or explain why an objective is unavailable. A scope limitation requires consent after consultation and must remain consistent with competence and other professional obligations. A written engagement should make these boundaries understandable. [1]

Representation may arise expressly or through the parties’ words and conduct. A signed contract or retainer payment is not the only way it can begin; a person’s uncommunicated belief is not enough. At intake, obtain written clarification of whether representation has been accepted, what work is covered, and who will address known deadlines. Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 254–55 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). [2]

Protect information during the initial consultation

Rule 1.18 protects information received in a qualifying good-faith consultation about possible representation, subject to its exceptions. An unsolicited submission is not necessarily such a consultation. Read intake notices before sending sensitive facts, and ask how the firm screens conflicts. A short description and identifying information may be appropriate before a detailed account. [3]

A consultation does not automatically disqualify a firm from later adverse representation. The rule addresses significantly harmful information, consent, and screening under specified conditions. Nor does a consultation automatically mean counsel is protecting a filing deadline. [3]

Professional confidentiality and attorney–client evidentiary privilege are distinct. Ask before including relatives in meetings, copying supporters into correspondence, or forwarding legal advice. Third-party involvement does not always defeat privilege, but protection cannot be assumed. [4]

Identify the rights at stake before defining the representation

A respondent should ask more than what outcome counsel expects. Ask which rights and interests the requested relief would affect, what legal authority protects them, and what work is needed to evaluate and present the issues. Separate the respondent’s rights, the other parent’s rights, and the children’s own rights and interests. They may overlap without being identical.

Established parental protections. Constitutional decisions recognize protected parental decision-making. Troxel v. Granville, 530 U.S. 57 (2000), and In re C.J.C., 603 S.W.3d 804 (Tex. 2020), involved nonparent claims; they should not be treated as automatically deciding disputes between two fit parents. Counsel should identify the authority and standard applicable to the actual requested order. [5–6]

Texas Family Code § 151.001 identifies parental rights and duties concerning possession, care, support, education, and moral and religious training, subject to its terms and court orders. Existing orders must be examined before assuming how those rights may be exercised. [7]

Children’s protections and interests. Children are persons whose circumstances must be examined individually. Texas statutes identify policies concerning safety, stability, and continuing parental contact, and make best interest the primary consideration for conservatorship, possession, and access. These statutory policies should not be casually restated as absolute constitutional entitlements to a particular living arrangement. Current § 153.002 also separately addresses parent–nonparent disputes. [8]

In re C.J.C. also recognizes the child’s own interest in the familial relationship. Counsel should evaluate that interest in the actual proceeding without assuming it dictates a particular custody outcome. The statutory parental duty of support separately addresses children’s material needs. [6–7]

For each proposed child-related claim, ask who holds the right, its legal source, who may assert it, and whether a conflict or separate representation issue exists. The respondent’s lawyer does not automatically represent the children. An asserted child’s right should not merely be a new label for a parent’s litigation preference.

Procedural and substantive questions. Procedural due process concerns the process required before a deprivation; substantive constitutional analysis concerns whether and on what justification government may burden a protected right. As a practical intake framework, ask counsel to assess notice, opportunity to respond, necessary hearings and evidence, the burdens applicable to the requested relief, and any constitutional limits. Identifying a concern does not by itself establish a violation.

The statutory divorce grounds and child-related relief also require separate attention. Section 6.001 states the insupportability ground; § 6.406 requires joinder of a suit affecting the parent–child relationship in the circumstances it specifies, with statutory exceptions. Joinder does not eliminate the need to evaluate the legal basis and proof for particular requested orders. [9]

TCMP’s proposed threshold analysis. TCMP maintains that, before granting a divorce and associated relief, a court should identify the protected rights affected and determine the applicable constitutional analysis, including the appropriate level of scrutiny where relevant. This is TCMP’s legal-policy position. This article does not represent that existing precedent establishes a separate threshold hearing before every Texas divorce, or that strict scrutiny automatically governs every family-law order. The Troxel plurality did not announce a universal strict-scrutiny test. [5]

The respondent may ask counsel to evaluate this position, distinguish settled law from proposed extensions, identify contrary authority, and explain whether a professionally supportable argument can be presented. A lawyer’s reasoned disagreement with TCMP’s argument is not, by itself, a breach of duty.

Bring a concise rights-and-relief outline to intake: the proposed order; the person affected; the asserted right or interest and its source; the supporting facts; the requested protection; and the work counsel is being asked to evaluate. Potential subjects include parental authority, religious exercise, family privacy, children’s relationships, property, and procedural fairness. This is an analytical aid, not a declaration that every subject creates a separate claim.

Put the agreed work and authority in writing

The engagement should connect the client’s objectives to defined work. Discuss immediate deadlines, pleadings, temporary orders, evidence, negotiations, and trial. Ask expressly about excluded proceedings, enforcement, constitutional analysis, preservation advice, appellate consultation, appeals, and ecclesiastical matters.

If a proposed rights-based argument matters to the client’s decision to retain counsel, resolve whether the lawyer will evaluate it, what further work depends on that evaluation, and what additional fees apply. Paying for representation does not require counsel to present every requested argument. Neither should the client discover later that an important issue was never included in the engagement.

Preserving a complaint ordinarily requires timely, specific presentation to the trial court and a ruling, or the appropriate response to a refusal to rule. Private correspondence with counsel does not itself preserve appellate error. Ask what objections, evidence, rulings, and record will be needed, and who will handle them. Texas Rule of Appellate Procedure 33.1 supplies the general preservation framework, subject to applicable exceptions and issue-specific rules. [10]

Record how consequential changes in objectives or general approach will be discussed and how substantial expenses will be authorized. Written instructions help establish the parties’ understanding; they do not guarantee that a third party or court will disregard an act already taken under actual or apparent authority. [11]

A spouse hoping to preserve the marriage should say so. A parent should identify concerns about safety, caregiving, schooling, medical care, religious formation, and continuity of relationships. Explain the actual circumstances and relevant orders. Neither preservation of marriage nor any other desired outcome can be guaranteed.

Request counsel’s written statement when retained

At retention, the client should request a written statement from counsel defining the accepted work, delegated authority, and decisions reserved to the client as principal. It should be signed by counsel and acknowledged by the client as part of, or an attachment to, the engagement agreement. Resolve inconsistent boilerplate and complete every relevant field before signing.

The following is proposed engagement language for discussion and adaptation with counsel. Texas law does not require every lawyer to sign this particular form. Its additional contractual restrictions must be agreed upon; they supplement existing duties without authorizing unlawful conduct. Rule 1.02 governs client decisions and scope, while agency law affects whether acts bind the client externally. [1, 11]

Proposed statement by retained counsel

Client and matter. I, [counsel’s name and State Bar number], accept representation of [client’s name], the principal, concerning [matter and court or cause number, if any], effective [date]. The client, rather than a relative paying fees or another supporter, directs the representation subject to applicable law and professional obligations.

Accepted objectives and work. The attached scope schedule identifies the client’s lawful objectives and priorities; included proceedings, tasks, and stages; excluded work; known deadlines and responsible persons; and the agreed process for changing scope. It states whether the engagement includes evaluating identified parental and children’s rights, due-process concerns, proposed constitutional arguments, preservation, and appellate advice. Acceptance of evaluation does not promise that every proposed argument will be asserted or succeed.

Authority delegated. Within that completed schedule, I may investigate facts, obtain records lawfully, research, advise, prepare and file authorized pleadings, conduct discovery, appear, and handle ordinary procedural and technical matters. I may discuss nonbinding settlement possibilities while making clear that acceptance remains reserved. My professional discretion remains subject to the agreed objectives, general methods, expense limits, and the express reservations below. I will identify any additional delegated authority in the schedule rather than assume an unlimited mandate.

Actions strictly prohibited without express authorization. Under this engagement, I shall not take any of the following actions without the client’s prior, express authorization, confirmed in writing for the particular action and its material terms:

• Accept or conclude a settlement, or communicate that the client has accepted one.
• Sign or authorize another person to sign the client’s name to a settlement, release, waiver, or agreed order.
• Consent to an order materially changing parental decision-making, possession, residence restrictions, religious-formation arrangements, support obligations, or property rights.
• Dismiss, release, or materially compromise a claim or defense identified as reserved in the scope schedule, or abandon an agreed objective or specifically reserved ground without discussing the legal consequences.
• Waive a jury demand, agree to binding arbitration, or waive appellate review.
• Stipulate to a contested material fact, or waive a protection or objection, specifically identified as reserved in the schedule.
• Incur a single expense above [amount] or exceed the agreed aggregate expense limit of [amount], except as separately authorized in writing.
• Materially expand the scope or transfer responsibility for the engagement to a different firm.

 

Consent and documentation. Before seeking authorization, I will explain the proposed action, material consequences, reasonable alternatives, and applicable time constraints sufficiently for an informed decision. The schedule identifies the approved means of written confirmation, including whether email is sufficient. Silence, payment of a bill, or a general instruction to handle the matter will not be treated between us as authorization for these reserved actions. I will retain the authorization and provide the client a copy. Changes to these reservations require express written agreement.

Professional duties and urgent circumstances. These restrictions do not require unlawful conduct or override binding court orders, mandatory disclosures, or other nonwaivable duties. If an instruction conflicts with those duties, or a reserved decision cannot practicably be obtained in time, I will explain the issue promptly and seek lawful directions or court relief as appropriate. Routine protective steps already delegated may be taken to prevent immediate prejudice; urgency alone does not authorize a reserved settlement, concession, or waiver. I will document what occurred and notify the client promptly. Withdrawal remains subject to applicable rules and required court approval. [15, 19]

Signatures. Counsel: [signature and date]. Client acknowledgment and agreement: [signature and date]. Incorporated scope schedule: [title, date, and version].

Complete the schedule and understand its limits

The scope schedule should specify what is delegated, what is reserved, the expense limits, the communication method, and responsibility for urgent decisions. It should distinguish declining an unsupported argument after evaluation from surrendering an agreed position to obtain a settlement. Unresolved instructions should be discussed before the engagement begins or the disputed action occurs.

This statement regulates authority between lawyer and client; it is not a guarantee that an unauthorized act will have no legal effect. Actual or apparent authority, the client’s own conduct, procedural rules, and the circumstances may affect third-party reliance and enforceability. Ask counsel whether particular limitations should be communicated to the court or opposing counsel. A later breach complaint does not automatically undo an agreement or order. [11]

Ask clear questions about intake and fees

Before accepting the engagement, clarify these matters:

• The client and the team. Who is represented, who is responsible, and what will associates or staff do?
• Acceptance and deadlines. What has counsel accepted, and which urgent tasks remain the prospective client’s responsibility?
• Scope and decisions. What work is included, what is excluded, and how will consequential instructions be requested and recorded?
• Communication. How will developments, documents, settlement proposals, and reasonable information requests be handled?
• Costs. What rates, billing increments, expenses, deposits, and replenishment terms apply? When will estimates be updated?
• Advance payments. What does the initial payment purchase, when is it earned, how is it held and applied, and what happens to an unearned balance?
• Contract provisions. What do arbitration, withdrawal, dispute-resolution, or proposed liability-limitation provisions mean?

 

These are recommended safeguards, not a claim that every item is a separately mandatory intake formality. Rule 1.04 requires the basis or rate of fees to be communicated before or within a reasonable time after representation begins when the lawyer has not regularly represented the client, preferably in writing. [12]

If a relative or supporter pays, identify the client clearly. Payment alone does not confer control of the representation or access to confidential information. Rule 1.08(e) requires client consent and protects counsel’s independence and confidentiality. Rule 1.08(g) separately regulates proposed malpractice-liability limitations. [13]

Expect loyalty competence and candid advice

Fiduciary obligations and disciplinary duties overlap but are not interchangeable legal categories. Rule 1.06 regulates conflicting interests and prohibits representing opposing parties in the same litigation. Rules 1.01 and 1.05 address competence, diligence, and confidentiality, including defined exceptions. Counsel’s own financial interests must not be assumed to justify sacrificing the client’s interests. [14–15]

Rule 1.03 requires reasonable information and explanations sufficient for informed decisions. A client should understand consequential choices, not simply receive a list of completed activities. [16]

Rule 2.01 requires independent professional judgment and candid advice. Counsel may identify weak evidence, recommend compromise, or reject an unsupportable position. Its commentary also recognizes relevant moral and ethical considerations and the limits of purely technical advice. Catholic clients should identify religious commitments that affect priorities and ask whether separate canonical or pastoral advice is needed. Civil representation does not automatically include those services. [17]

Understand when an agreement becomes binding

Discuss settlement authority before negotiations. Distinguish permission to explore a proposal, authority to communicate an offer, acceptance, signature of an agreement, and approval of the order implementing it. Rule 1.02 generally reserves settlement acceptance to the client, subject to law. [1]

Qualifying mediated settlement agreements can have binding effect under Family Code §§ 6.602 and 153.0071. Ask counsel to explain the agreement and its consequences before authorizing or signing it; do not assume a later change of mind permits revocation. Statutory qualifications and enforceability questions require separate analysis. A complaint about counsel does not automatically invalidate an agreement. [9, 18]

Respond promptly when the representation appears to depart from the agreement

An adverse result or unwelcome advice does not itself prove misconduct. Concerns requiring explanation include concealed conflicts, misuse of confidences, unexplained departures from objectives, or decisions allegedly made without required authority. Communication failures or errors may raise different issues from disloyalty; their legal characterization depends on the facts.

For ordinary uncertainty, request a specific written explanation: what occurred, why, under what authority, and what decision is now needed? Preserve the engagement, correspondence, invoices, and relevant court documents. If an imminent hearing, deadline, or disputed agreement threatens immediate prejudice, obtain prompt independent advice about protecting the case rather than waiting solely for an explanation.

A client generally may discharge retained counsel, subject to fees and applicable procedural requirements. Rule 1.16 addresses withdrawal and protection of the client on termination, including notice, papers and property, and refunds of unearned advance fees. Changing lawyers does not itself stop proceedings. [19]

Understand the available forms of accountability

Disciplinary proceedings address professional misconduct. A rule violation does not itself create a private civil claim. The grievance system cannot award damages, change a court decision, or substitute for civil remedies. Protecting the pending case and pursuing a grievance are separate tasks. [20]

Malpractice generally concerns negligent professional work causing compensable injury. Distinct fiduciary claims concern loyalty and fidelity. In Pitts v. Rivas, 709 S.W.3d 517, 523–25 (Tex. 2025), an accounting-malpractice case, the Supreme Court applied the broader anti-fracturing doctrine: negligence cannot simply be relabeled, although genuinely distinct claims may proceed on supporting facts. [21]

For a clear and serious fiduciary breach, a court may order partial or total fee forfeiture without proof of actual damages. The remedy is discretionary; the judge determines it after necessary factual disputes are resolved. Burrow v. Arce, 997 S.W.2d 229, 237–46 (Tex. 1999). [22]

Make informed direction part of faithful representation

For TCMP, preventive legal education includes understanding what counsel owes, what the engagement authorizes, and which rights require examination before consequential decisions are made. The respondent should be able to ask for an informed assessment of the proceedings without being expected to arrive as a trained constitutional lawyer.

A sound engagement identifies the client’s lawful objectives, the rights and interests requiring evaluation, the work counsel accepts, and the decisions that remain with the client. The lawyer remains responsible for competent work, loyalty, and explanations sufficient for informed participation. The children’s individual circumstances deserve sustained attention throughout that work.

TCMP provides public education and legal-policy analysis. It does not provide legal representation, individualized legal advice, counseling, mediation, or tribunal services. TCMP’s proposed threshold analysis is distinguished above from established authority.

Authorities

1. Tex. Disciplinary R. Prof’l Conduct 1.02 & cmts. 1–5.
2. Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 254–55 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
3. Tex. Disciplinary R. Prof’l Conduct 1.18 & cmts. 2–8.
4. Tex. R. Evid. 503; University of Texas System v. Franklin Center for Government & Public Integrity, 675 S.W.3d 273 (Tex. 2023).
5. Troxel v. Granville, 530 U.S. 57, 65–73 (2000) (plurality opinion); id. at 80 (Thomas, J., concurring in the judgment).
6. In re C.J.C., 603 S.W.3d 804, 811–20 (Tex. 2020).
7. Tex. Fam. Code § 151.001(a), (d).
8. Tex. Fam. Code §§ 153.001–.002.
9. Tex. Fam. Code §§ 6.001, .406, .602.
10. Tex. R. App. P. 33.1 (rules updated effective February 6, 2026).
11. Randell v. Galbreath, No. 11-15-00056-CV (Tex. App.—Eastland 2017) (mem. op.).
12. Tex. Disciplinary R. Prof’l Conduct 1.04(c).
13. Tex. Disciplinary R. Prof’l Conduct 1.08(e), (g).
14. Tex. Disciplinary R. Prof’l Conduct 1.06.
15. Tex. Disciplinary R. Prof’l Conduct 1.01, 1.05 (effective March 7, 2025).
16. Tex. Disciplinary R. Prof’l Conduct 1.03.
17. Tex. Disciplinary R. Prof’l Conduct 2.01 & cmts. 1–4.
18. Tex. Fam. Code § 153.0071.
19. Tex. Disciplinary R. Prof’l Conduct 1.16 & cmts. 3–4, 9.
20. Tex. Disciplinary R. Prof’l Conduct pmbl. ¶ 15; State Bar of Texas, File a Grievance.
21. Pitts v. Rivas, 709 S.W.3d 517, 523–25 (Tex. 2025).
22. Burrow v. Arce, 997 S.W.2d 229, 237–46 (Tex. 1999).