Can a district attorney prosecute a husband for child desertion while also representing the wife in her divorce action?

Plain-English summary

The inquiry asked whether a district attorney could represent the wife in a divorce action while at the same time representing the State in the prosecution of the husband for child desertion.

The Committee concluded that it would be improper for the district attorney to represent the State in the criminal proceeding and at the same time to accept employment in a civil action so closely related to that criminal proceeding. It held that representing such conflicting interests would violate Canon 6 (9-0).

Currency note

This opinion was issued in 1955, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a district attorney represent a wife in divorce while prosecuting her husband for child desertion?

A: No. The Committee concluded that the civil employment was so closely related to the criminal prosecution that it would violate Canon 6 (9-0).

Q: What made the two matters a conflict under the opinion?

A: The opinion turned on the close relation between the criminal proceeding the district attorney pursued for the State and the divorce employment, which it treated as conflicting interests.

Background and rules framework

The opinion interprets former Texas Canon 6, which addressed the representation of conflicting interests. The modern analog is ABA Model Rule 1.7 (concurrent conflicts of interest), and a prosecutor's special role is addressed today under Texas Disciplinary Rule 3.09.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest), as the modern analog
• Texas Canon 6 (conflicting interests)

See also

• TX Ethics Op. 113: State Cannot Consent to DA Conflict
• TX Ethics Op. 132: Lawyer Serving as District Attorney
• TX Ethics Op. 111: Conflict Representing Widow and Children's Mother

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-109/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_109.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

Would it violate the Canons of Ethics for a district attorney to represent the wife in a divorce action and at the same time represent the State in the prosecution of the husband for child desertion?

18 Baylor L. Rev. 238 (1966)

CONFLICTING INTERESTS - RELATED EMPLOYMENT
Prosecuting a husband for child desertion precludes a district attorney from representing the wife in a divorce action due to the close relation of the two.

Canon 6.

The committee is of the opinion that it would be improper for a district attorney to represent the State in the above described criminal proceeding and at the same time to accept employment in a civil action which is so closely related to the criminal proceeding. The representation of such conflicting interests would violate Canon No. 6. (9-0)

Tex. Comm. On Professional Ethics, Op. 109 (1955)