Can a law firm seek a pardon or parole for a prisoner when a firm member, as a former district attorney, prosecuted and convicted that prisoner?

Plain-English summary

The inquiry asked whether it violates the Canons for a law firm to accept employment representing a man in the penitentiary in obtaining a pardon or parole, where one member of the firm was the district attorney who prosecuted and convicted that man but is now in private practice.

Eight members replied, and they divided evenly. Four members were of the opinion that accepting such employment would violate Canons 6 and 33 of the Canons of Ethics of the State Bar of Texas. The other four were of the opinion that it would not be a violation, reasoning that considerations of clemency present an entirely different matter from the conviction of the man for crime. With the vote at 4-4, the Committee's headnote treats the question as open.

Currency note

This opinion was issued in 1956, 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 Treat this page as historical context, not current guidance.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: Did the Committee decide whether the firm could take the clemency case?

A: No. The members split 4-4, leaving the question open under Canons 6 and 33.

Q: What was the argument against allowing it?

A: Four members viewed accepting the employment as a violation of Canons 6 and 33, given the firm member's role in prosecuting and convicting the prospective client.

Q: What was the argument for allowing it?

A: Four members reasoned that considerations of clemency present an entirely different matter from the original conviction, so taking the case would not be a violation.

Background and rules framework

The opinion interprets former Texas Canon 6 (conflicting interests) and Canon 33 of the Canons of Ethics of the State Bar of Texas, as applied to a former prosecutor's firm seeking clemency for someone he convicted in office. The modern analogs are ABA Model Rule 1.11 (former government officer or employee) and Model Rule 1.9 (duties to former clients).

Citations and references

Rules of Professional Conduct:

• MR 1.11 (former government officer or employee), as the modern analog
• MR 1.9 (duties to former clients), as the modern analog
• Texas Canon 6 (conflicting interests)
• Texas Canon 33

See also

• TX Ethics Op. 132: District Attorney in a Law Firm
• TX Ethics Op. 126: County Attorney as Special Prosecutor
• TX Ethics Op. 123: Representing and Suing the Same Client

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-124/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_124.pdf

Original opinion text

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

QUESTION PRESENTED

Would it be a violation of the Canons of Ethics for a law firm to accept employment in representing a man now in the penitentiary in obtaining a pardon or parole where one member of the firm was the district attorney who prosecuted and convicted the same man, but is now in private practice?

18 Baylor L. Rev. 244 (1966)

ADVERSE INFLUENCES AND CONFLICTING INTERESTS
It is an open question whether a firm may accept employment seeking parole or pardon of one in prison when a member of the firm was the district attorney, before his retirement, who prosecuted and convicted the prospective client.

RETIREMENT FROM JUDICIAL EMPLOYMENT
Where a man in prison seeks to employ a firm to obtain his parole or pardon, the committee is evenly divided on whether such employment should be accepted when a member of the firm is the district attorney who convicted the man, but who is now in private practice.

Canons 6, 33.

Eight replies to this inquiry were received from members of the committee. Four of the members are of the opinion that to accept such employment would violate Canons 6 and 33 of the Canons of Ethics of the State Bar of Texas.

Four members are of the opinion that it would not be a violation since considerations of clemency present an entirely different matter from the conviction of the man for crime. (4-4)

Tex. Comm. On Professional Ethics, Op. 124 (1956)