Can a district attorney prosecute defendants his former law firm was hired to defend, even though he never actively worked on the case?

Plain-English summary

A law firm had been employed to represent defendants in criminal cases pending in the state district court in the county of the attorney's residence. After a change of venue moved the cases to another district, X, a member of the firm, became district attorney in the county where the actions were filed. X had not actively participated in the defense. The indictments were later dismissed, the matter returned to the grand jury in X's county, and the inquiry asked whether it would violate the Canons for X to represent the State in future proceedings while his former partner Y continued to represent the defendants.

The Committee concluded it would violate Canon 6 for X to represent the State under these circumstances. Canon 6 makes it unprofessional to represent conflicting interests except by express consent of all concerned after full disclosure. Because X's firm was employed to represent the defendants, X was their attorney even though he was not active in the cases, and the State, which now employs X, could not give consent allowing X to represent it after he had been employed by the adverse parties. The vote was 7-0.

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 Treat this page as historical context, not current guidance.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 the new district attorney prosecute defendants his former firm was hired to defend?

A: No. The Committee held it would violate Canon 6, because he was their attorney through the firm even though inactive (7-0).

Q: Did it matter that X never worked on the defense?

A: No. The Committee reasoned that since X's firm was employed to defend, X was the defendants' attorney even though he was not active in the cases.

Q: Could the State just consent to the arrangement?

A: No. The Committee held the State could not give consent allowing X to represent it after he had been employed by the adverse parties.

Background and rules framework

The opinion interprets former Texas Canon 6, the conflicting-interests provision of the Canons of Ethics of the State Bar of Texas, as applied to a prosecutor whose former firm defended the accused. The modern analogs are ABA Model Rule 1.11 (former government officer, and prior private practice) and Model Rule 1.9 (duties to former clients).

Citations and references

Rules of Professional Conduct:

• MR 1.11 (special conflicts for former and current government officers), as the modern analog
• MR 1.9 (duties to former clients), as the modern analog
• Texas Canon 6 (conflicting interests)

See also

• TX Ethics Op. 124: Ex-Prosecutor's Firm and Clemency
• TX Ethics Op. 132: District Attorney in a Law Firm
• TX Ethics Op. 126: County Attorney as Special Prosecutor
• TX Ethics Op. 115: Representing a Contested Former Guardian

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-113/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_113.pdf

Original opinion text

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

QUESTION PRESENTED

A firm of attorneys accepted employment to represent the defendants in some criminal cases pending in the state district court, in the county of the attorney's residence. On a change of venue, these criminal cases were removed to another judicial district. Subsequently X, a member of the firm, became district attorney in the county where these criminal actions were filed. X had not participated actively in the defense of the criminal actions. After the change of venue, the criminal indictments were dismissed and the matter is again before the grand jury in the county where the actions were instituted and where X is now district attorney. Would it violate the Canons of Ethics for X to represent the State in future proceedings in these criminal cases while Y, former partner of X, continues to represent defendants?

18 Baylor L. Rev. 240 (1966)

CONFLICTING INTERESTS - FIRM'S PRIOR EMPLOYMENT
The State cannot consent to be represented by a district attorney who, prior to his election, was a member of a firm which had been employed by the defendants in the criminal proceedings.

Canon 6.

The committee is of the opinion that it would violate Canon 6 for X to represent the State under these circumstances. Canon 6 provides that it is unprofessional to represent conflicting interests, except by express consent of all concerned, given after a full disclosure of the facts. Since X's firm was employed to represent defendants, X was attorney for the defendants, even though he was not active in the cases. The State, which now employs X, could not give its consent so as to allow X to represent it after having been employed by the adverse parties. (7-0)

Tex. Comm. On Professional Ethics, Op. 113 (1955)