Can a part-time assistant county attorney who represents the state in child-protection cases also run a private practice representing parents and children?

Plain-English summary

The Burleson County Attorney asked the AG about a hiring plan. Her office represents the Department of Family and Protective Services in county child-protection cases, and she wanted to bring on a part-time assistant county attorney whose sole function would be that Department work. The candidate already ran a private practice in Travis County representing parents and children in child-protection cases across Central Texas (though not in Burleson County or its neighbors), and that private work could at times be adverse to the Department. The question had two parts: may the attorney keep the private practice, and if so, may the private practice include representing parents or children in matters that could be adverse to the Department.

On the first part, the AG concluded a court would likely say yes. The Professional Prosecutors Act in Government Code chapter 46 generally bars a state or county prosecutor (and certain assistants) from the private practice of law, but only when the prosecutor's total state-and-county salary is at least 80 percent of the "benchmark salary," which is the state salary of a district judge with comparable service. That benchmark is currently $140,000, so the cutoff is $112,000. A parallel rule for assistants who receive longevity pay (chapter 41, section 41.254) uses the same 80-percent threshold. The county said the part-time attorney would be paid $35,000, and that even with longevity pay the total would stay under $112,000. Because the salary falls below the threshold, the AG reasoned that neither section 46.005(a) nor section 41.254 would prohibit this attorney from maintaining a private practice. The opinion grounds this in earlier AG opinions (GA-0241 and GA-0094) reaching the same conclusion for below-benchmark county attorneys.

On the second part, the AG declined to give a definitive answer. Attorney conflicts of interest are governed by the Texas Disciplinary Rules of Professional Conduct, and the opinion walks through the rules that could be in play: Rule 1.06(a) (no representing directly opposing parties in the same litigation), Rule 1.06(b)(1) (no representing clients with materially and directly adverse interests in substantially related matters), Rule 1.06(b)(2) (no representation that would be adversely limited by duties to another client), and Rule 1.10 (successive government and private employment, including the concern about using confidential government information against a private client's adversary). But the opinion stops there. Whether any of these rules is actually violated depends on the specific facts, and the county and the Department gave the AG conflicting accounts of those facts. The AG's office does not resolve disputed facts in an opinion, and questions of professional conduct are for the lawyer and the disciplinary arm of the Supreme Court and State Bar to decide in the first instance. So the AG referred the county to the Committee on Professional Ethics, which is charged with opining on the propriety of attorney conduct. The opinion adds that if the Department ever moved to disqualify this attorney in a particular case, the Department would carry the burden of proving a disciplinary-rule violation.

What this means for you

If you are a county attorney or district attorney considering a part-time hire

Based on this opinion, the Professional Prosecutors Act's bar on private practice keys off the 80-percent-of-benchmark salary threshold. The AG read the Act and the chapter 41 longevity-pay rule so that a prosecutor or assistant whose total state-and-county pay stays below that line (here, $112,000) is not barred from a private practice. The opinion does not bless any particular private representation; it only addresses the salary-threshold question.

If you are the part-time assistant attorney

The opinion describes which disciplinary rules could be implicated by representing parents or children in matters that could be adverse to the Department, principally Rules 1.06 and 1.10. It does not tell you whether your specific arrangement violates them. The AG points out that the first-instance judgment about professional conduct rests with you and, if needed, the Committee on Professional Ethics.

If you are the Department or another party weighing disqualification

The opinion notes that whether a conflict exists is a fact question, and that a party seeking to disqualify the attorney in a given matter would have the burden of establishing a violation of one or more disciplinary rules.

Common questions

Q: Does the Professional Prosecutors Act always ban a county prosecutor from private practice?
A: No. The AG read the Act (and the chapter 41 longevity-pay rule) to bar private practice only when the prosecutor's total state-and-county salary is at least 80 percent of the benchmark district-judge salary. Below that threshold, the bar does not apply.

Q: What is the salary threshold?
A: The benchmark is the state salary of a district judge with comparable service, currently $140,000. Eighty percent of that is $112,000. The opinion treats a total salary below $112,000 as outside the private-practice prohibition.

Q: Did the AG say whether representing parents and children creates a conflict of interest?
A: No. The AG expressly declined to answer that. Conflict questions under the Disciplinary Rules turn on disputed facts, which an AG opinion cannot resolve, so the AG referred the county to the Committee on Professional Ethics.

Q: Which disciplinary rules could be involved?
A: The opinion flags Rule 1.06 (concurrent conflicts, including directly opposing parties and substantially related adverse matters) and Rule 1.10 (successive government and private employment and use of confidential government information).

Q: Who decides if there is actually a conflict?
A: In the first instance, the lawyer, and then the disciplinary arm of the Supreme Court of Texas and the State Bar. If the Department sought disqualification in a case, it would have the burden of proving a disciplinary-rule violation.

Background and statutory framework

Under Family Code section 264.009(a), the Department is generally represented in Family Code actions by the county attorney where the action is brought. The Professional Prosecutors Act (Government Code sections 46.001–.007) governs the private-practice question. Section 46.005 bars private practice for a covered prosecutor or assistant whose salary from all state and county funds is at least 80 percent of the benchmark salary, defined in section 46.001(2) by reference to a district judge's salary under section 659.012; section 41.254 sets a parallel rule for assistants receiving longevity pay. The AG relied on prior opinions GA-0241 and GA-0094 for the below-benchmark conclusion.

The conflict-of-interest question is governed by the Texas Disciplinary Rules of Professional Conduct, under the disciplinary jurisdiction described in Government Code section 81.071. The opinion discusses Rule 1.06(a), (b)(1), and (b)(2), citing In re Seven-O Corp. on the meaning of "opposing parties," In re Houston Cnty. ex rel. Session and State Bar of Tex. v. Dolenz (drawing on In re EPIC Holdings) on "substantially related," and In re Thetford on when representation of one client is adverse to another. It discusses Rule 1.10 on successive government and private employment. Because resolving these rules requires fact-finding outside an AG opinion (citing GA-0557 and KP-0240), the opinion refers the matter to the Committee on Professional Ethics created under Government Code sections 81.091 and 81.092.

Citations and references

Statutes and rules:

• Tex. Gov't Code ch. 46 (Professional Prosecutors Act), § 41.254 (longevity-pay private-practice rule)
• Tex. Gov't Code §§ 81.091–81.092 (Committee on Professional Ethics)
• Tex. Fam. Code § 264.009 (Department's representation)
• Tex. Disciplinary Rules of Prof'l Conduct R. 1.06, R. 1.10

Key cases:

• In re Houston Cnty. ex rel. Session, 515 S.W.3d 334 (Tex. App.—Tyler 2015, orig. proceeding) (definition of "substantially related")
• In re EPIC Holdings, Inc., 985 S.W.2d 41 (Tex. 1998) (genuine threat of divulging confidential information)
• In re Thetford, 574 S.W.3d 362 (Tex. 2019) (when representation of one client is adverse to another)
• State Bar of Tex. v. Dolenz, 3 S.W.3d 260 (Tex. App.—Dallas 1999, no pet.) (burden of proving the consent exception)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0400
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0400.pdf

Original opinion text

February 1, 2022

The Honorable Susan Deski
Burleson County Attorney
100 West Buck Street, Suite 402
Caldwell, Texas 77836

Opinion No. KP-0400

Re: Whether a part-time assistant county attorney representing the Department of Family and Protective Services may maintain a private practice representing parents or children in child protection cases in other counties (RQ-0423-KP)

Dear Ms. Deski:

You ask whether a part-time assistant county attorney is prohibited by the Professional Prosecutors Act or conflict of interest rules from representing the Department of Family and Protective Services ("Department") in Burleson County ("County") child protection cases when the attorney "simultaneously maintains a private practice in other counties in which they represent both parents and children in child protection cases that may be adverse to the Department."¹

¹ Letter from Honorable Susan Deski, Burleson Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Aug. 2, 2021), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0423KP.pdf ("Request Letter").

Background

You inform us that your office, among other matters, represents the Department of Family and Protective Services in child protection cases in Burleson County. Request Letter at 1; see TEX. FAM. CODE § 264.009(a) (providing, with exceptions not relevant here, that in any action under the Family Code, the Department "shall be represented in court by the county attorney of the county where the action is brought, unless the district attorney or criminal district attorney of the county elects to provide representation"). You explain that you would like to hire a part-time assistant county attorney whose "sole function" would be to represent the Department in such cases and that you are aware of other counties that have employed a part-time attorney in this manner. Request Letter at 1. You offered the position to a particular attorney who maintains a private practice in Travis County representing "parents and children in child protection cases in the Central Texas area, but not in Burleson County or its contiguous counties." Id.

Your question has two components: whether this attorney may maintain a private practice and whether this attorney, in that private practice, may represent parents or children in child protection cases that may be adverse to the Department. We consider each component in turn.

Attorney's maintenance of a private practice generally

The Professional Prosecutors Act (the "Act") found in Government Code chapter 46 addresses the first component of your question. See TEX. GOV'T CODE §§ 46.001–.007; see also id. § 46.002(3) (making the Act applicable to county attorneys performing the duties of district attorneys in particular counties, including Burleson County). Chapter 46 governs state and county prosecutors and generally prohibits a state prosecutor from engaging in the private practice of law. See id. § 46.005(a). The primary purpose of the prohibition on the private practice of law is to "prevent prosecutors from spending their time attending to the business of private clients rather than public business." Tex. Att'y Gen. Op. No. JC-0380 (2001) at 1 (internal quotation marks omitted). The Act's prohibition also "applies to a county prosecutor and any assistant of a prosecutor if, from all state and county funds received, the county prosecutor or assistant receives a salary that is equal to or more than 80 percent of the benchmark salary." TEX. GOV'T CODE § 46.005(c). A similar provision, found in Government Code chapter 41 containing general provisions relating to prosecuting attorneys, prohibits an assistant prosecutor who receives longevity pay from engaging in the private practice of law if the assistant prosecutor receives a salary equal to or more than 80 percent of the salary the state pays a district judge. See id. § 41.254(a).

The "benchmark salary" is the "state annual salary as set by the General Appropriations Act in accordance with Section 659.012 paid to a district judge with comparable years of service as the county prosecutor." Id. § 46.001(2). Currently, that salary is $140,000. See id. § 659.012(a)(1). Eighty percent of $140,000 is $112,000. You assert that you offered the part-time attorney a salary of $35,000, and that even with their expected longevity pay, the attorney's total annual salary would be less than $112,000. See Request Letter at 2. If in fact the part-time attorney's salary does not exceed the salary specified in these provisions, neither provision applies to prohibit the attorney here from engaging in the private practice of law. See generally Tex. Att'y Gen. Op. Nos. GA-0241 (2004) at 2 ("County attorneys who do not receive a salary in excess of the benchmark are not subject to the prohibition in the Professional Prosecutors Act against maintaining a private law practice."), GA-0094 (2003) at 2 (concluding that because county attorney's salary was less than "80 percent of the benchmark salary," section 46.005 was not applicable and county attorney could engage in the private practice of law). Accordingly, a court would likely conclude that neither Government Code section 46.005(a) nor Government Code section 41.254 prohibit the assistant county attorney you describe from maintaining a private practice.

Attorney's representation of parents or children in child protection cases

The Texas Disciplinary Rules of Professional Conduct ("Disciplinary Rules") govern lawyers in Texas and address the second component of your question. See TEX. GOV'T CODE § 81.071 ("Each attorney admitted to practice in this state . . . is subject to the disciplinary and disability jurisdiction of the supreme court and the Commission for Lawyer Discipline, a committee of the state bar."). Disciplinary Rule 1.06 prohibits an attorney from representing opposing parties to the same litigation. TEX. DISCIPLINARY RULES OF PROF'L CONDUCT R. 1.06(a), reprinted in TEX. GOV'T CODE, tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9). You do not suggest circumstances exist that make this rule applicable, but to the extent such circumstances arise, this attorney could not represent children or parents and the Department as opposing parties in the same matter. See In re Seven-O Corp., 289 S.W.3d 384, 390 (Tex. App.—Waco 2009, orig. proceeding [mand. denied]) (reciting comment 2 to Rule 1.06(a) noting that the term "'opposing parties' . . . contemplates a situation where a judgment favorable to one of the parties will directly impact unfavorably upon the other party").

Beyond prohibiting direct adversarial opposition, Disciplinary Rule 1.06(b)(1) also generally prohibits an attorney from representing two persons in a "substantially related matter" whose interests are "materially and directly adverse." TEX. DISCIPLINARY RULES OF PROF'L CONDUCT R. 1.06(b)(1). The Disciplinary Rules do not define "substantially related." See id. The Texas Supreme Court defined the term for purposes of Disciplinary Rule 1.09, and some courts have used that same definition for Disciplinary Rule 1.06. See, e.g., In re Houston Cnty. ex rel. Session, 515 S.W.3d 334, 342 (Tex. App.—Tyler 2015, orig. proceeding); State Bar of Tex. v. Dolenz, 3 S.W.3d 260, 270–71 (Tex. App.—Dallas 1999, no pet.). Accordingly, two matters are "substantially related" when "a genuine threat exists that a lawyer may divulge in one matter confidential information obtained in the other because the facts and issues involved in both are so similar." In re Houston Cnty., ex rel. Session, 515 S.W.3d at 342, citing In re EPIC Holdings, Inc., 985 S.W.2d 41, 51 (Tex. 1998).

Also, Disciplinary Rule 1.06(b)(2) generally prohibits an attorney from representing a person if such representation "reasonably appears to be or become adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's or law firm's own interests." TEX. DISCIPLINARY RULES OF PROF'L CONDUCT R. 1.06(b)(2). This section addresses a "situation when a lawyer may not be able to consider, recommend or carry out an appropriate course of action for one client because of the lawyer's . . . responsibilities to others." Id. cmt. 4; see also In re Thetford, 574 S.W.3d 362, 376 (Tex. 2019) (original proceeding) (stating "a lawyer's representation of one client is adverse to another client if the lawyer's ability to faithfully and loyally represent his other client is compromised"). Thus, to the extent this attorney's representation of parents and children implicate matters that are substantially related to matters in which she represents the Department, or the representation of one client compromises representation of another, such representation would implicate Disciplinary Rule 1.06(b).²

This attorney's representation may also implicate Disciplinary Rule 1.10. Disciplinary Rule 1.10, relating to successive government and private employment, provides that a lawyer "shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation." TEX. DISCIPLINARY RULES OF PROF'L CONDUCT R. 1.10(a). But the comments to Disciplinary Rule 1.10(a) state that the rule does not "prohibit a lawyer from jointly representing a private party and a government agency when doing so is permitted by Rule 1.06 and is not otherwise prohibited by law." Id. cmt. 8. Disciplinary Rule 1.10 prohibits a lawyer from representing a private client whose interests are adverse to a governmental agency if the lawyer gained confidential government information during his or her prior employment with the government agency. Id. R. 1.10(c), (g). The comments to Disciplinary Rule 1.10 advise that "[a] lawyer should not be in a position where benefit to a private client might affect performance of the lawyer's professional functions on behalf of public authority" and that there could be "unfair advantage" to the "private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service." Id. cmt. 3.

Ultimately, we cannot advise you that the representation of this attorney as you describe it is proper as a matter of law. Conflict-of-interest questions involve issues of fact and are not ones we can answer in an Attorney General opinion.³ See, e.g., Tex. Att'y Gen. Op. No. GA-0557 (2007) at 3 (recognizing that resolution of issues under the Disciplinary Rules involve the investigation and resolution of fact questions which is beyond the scope of an Attorney General opinion). "Violations of, or sufficiency of actions taken under, the rules of professional conduct are to be decided in the first instance by the lawyer, or by the disciplinary arm of the Supreme Court of Texas and the State Bar of Texas." Id. (citing Tex. Disciplinary Rules of Professional Conduct preamble ¶ 15). Accordingly, we cannot conclusively answer your second question and instead refer you to the Committee on Professional Ethics, whose functions include opining on the propriety of attorney conduct under the Disciplinary Rules. See TEX. GOV'T CODE §§ 81.091 (creating the Committee on Professional Ethics); 81.092(a) (providing that the committee shall "express its opinion on the propriety of professional conduct"); see also Tex. Att'y Gen. Op. Nos. GA-0716 (2009) at 2, GA-0557 (2007) at 3, JC-0033 (1999) at 3.

² An exception to the prohibition applies if (1) the attorney reasonably believes that "the representation of each client will not be materially affected" and (2) "each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any." TEX. DISCIPLINARY RULES OF PROF'L CONDUCT R. 1.06(c). The burden of proving the application of the exception would be on the attorney raising the exception. See State Bar of Tex. v. Dolenz, 3 S.W.3d at 270.

³ While you describe certain facts that lead you and this attorney to conclude that there is no conflict, the Department offers differing facts suggesting potential areas of conflict. Compare Request Letter at 2–3, with Letter from Brenda L. Kinsler, Managing Att'y, Office of Gen. Couns., Tex. Dep't of Fam. & Protective Servs., to Honorable Ken Paxton, Tex. Att'y Gen. at 2–4 (Aug. 27, 2021) (on file with the Op. Comm.). This office does not resolve disputed facts. See Tex. Att'y Gen. Op. No. KP-0240 (2019) at 1. To the extent the Department were to seek the disqualification of this attorney in any particular matter, it would have the burden of establishing a violation of one or more of the disciplinary rules. See generally In re Houston Cnty., 515 S.W.3d at 342.

S U M M A R Y

A court would likely find that an assistant county attorney with the salary you describe may maintain a private practice. Attorney conflicts of interest are governed by the Texas Disciplinary Rules of Professional Conduct. The representation you describe may implicate Rules 1.06 and 1.10, but violations thereof are to be determined, in the first instance, by the attorney and the Committee on Professional Ethics. Questions about potential violation of these rules involve questions of fact and cannot be answered in an Attorney General opinion.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee