Can a lawyer hire a legislator as co-counsel solely to trigger a mandatory legislative continuance and delay the trial?

Plain-English summary

In a jury case pending four months, in which the two defendants had jointly obtained three continuances, the defendants employed a member of the Legislature, in addition to two firms already representing them, within thirty days of the Legislature's convening and within three days of the special trial setting. The inquiry asked whether it was unethical for the legislator to accept, and for the defendants' attorneys to make, the employment for the purpose of obtaining a mandatory legislative continuance under Article 2168a, or with the understanding he would move for it. The Committee was asked to assume the legislator was hired to secure a continuance.

All members except one, with one member disqualifying himself, concluded it is unethical, both as to the legislator and as to the attorneys employing him, to take or make the employment for the sole purpose of securing a continuance (6-1). The dissenting member condemned the practice but believed it was not unethical so long as Article 2168a remained on the books, with the remedy being to amend or repeal the statute.

The Committee observed that Rule 254 required a legislator-attorney seeking a continuance to make affidavit, together with the party, that his presence is necessary to a fair and proper trial of the cause, which the members felt was the proper standard. Although the Legislature had reenacted Article 2168a, apparently intending to supersede Rule 254, all but one of the voting members thought Rule 254 expressed the ethical consideration involved.

Currency note

This opinion was issued in 1957, 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 Treat this page as historical context, not current guidance.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 lawyer hire a legislator just to get a mandatory continuance?

A: No. A majority held it unethical, for both the legislator and the hiring attorneys, to make the employment for the sole purpose of securing a continuance (6-1).

Q: Did the existence of the legislative-continuance statute make it permissible?

A: The majority said no; only the dissenting member thought the conduct ethical so long as Article 2168a remained on the books, viewing amendment or repeal as the remedy.

Q: What standard did the Committee think should govern?

A: Rule 254's requirement that the legislator-attorney and the party file an affidavit that his presence is necessary to a fair and proper trial of the cause.

Background and rules framework

The opinion interprets former Texas Canon 18 against a lawyer's use of a legislative-continuance statute (Article 2168a) and procedural Rule 254. The modern analog is ABA Model Rule 3.2 (expediting litigation consistent with the client's interests), under which using procedures merely to delay is improper.

Citations and references

Rules of Professional Conduct:

• MR 3.2 (expediting litigation), as the modern analog
• Texas Canon 18 (former canon)

Statutes:

• Article 2168a, Texas Statutes (legislative continuance; reenacted by Acts 1949, 51st Leg., p. 1111, ch. 669)
• Texas Rule 254 (affidavit that the legislator-attorney's presence is necessary to a fair and proper trial)

See also

• TX Ethics Op. 162: Lawyer-Legislator Prosecuting an Authorized Claim
• TX Ethics Op. 173: County Judge Practicing Law

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-148/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_148.pdf

Original opinion text

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

QUESTION PRESENTED

In a jury case that had been pending four months, and in which the two defendants had jointly obtained three continuances, and in which a member of the Legislature was employed by said defendants (in addition to two other firms of attorneys already employed), within thirty days of the convening of the Legislature and within three days of the date on which said case was specially set for trial;
Was it unethical for such legislator under such circumstances to accept employment (a) for the purpose of making available to defendants the right to a mandatory continuance under Article 2168a, or (b) with the understanding he will move for such a continuance?
Was it unethical for defendant's attorneys under such circumstances to employ such legislator (a) for such purpose, or (b) with such understanding?

18 Baylor L. Rev. 257 (1966)

EXPEDITION - EMPLOYMENT OF LEGISLATORS
It is improper for defendant's counsel to employ a member of the Legislature as co-counsel for the sole purpose of securing a continuance of a case set for trial. Likewise, it would be improper for the legislator to accept such employment under those circumstances.

Canon 18.

In the question submitted the committee is asked to assume that the legislator was hired to secure a continuance.

All of the members of the committee except one (with one member disqualifying himself) are of the opinion that it is unethical, both as to the legislator and the attorneys employing him, for the legislator under the facts stated to accept employment for the sole purpose of securing a continuance. One member, while condemning the practice, believes such action not unethical as long as Art. 2168a remains on the statute books and that the remedy is to amend or repeal such statute.

Rule 254 provides that a legislator attorney seeking a continuance must make affidavit, along with the party, that his presence is necessary to a fair and proper trial of the cause. This is as the committee members feel it should be. However, by Acts 1949, 51st Leg., p. 1111, ch. 669, the Legislature reenacted Art. 2168a, which apparently was intended to supersede Rule 254. Nevertheless, all of the committee voting except one were of the opinion Rule 254 gives expression to the ethical consideration involved. (6-1)

Tex. Comm. On Professional Ethics, Op. 148 (1957)