If one partner in a law firm is the county attorney, can another partner defend someone being prosecuted for a felony in a different county?

Plain-English summary

The inquiry asked whether, when one member of a law partnership is the qualified and acting county attorney of the county where the firm is based, another member of the firm may accept a retainer to defend a person being prosecuted for a felony in a different Texas county.

The committee concluded it would be unethical for either the county attorney or his partner to accept the employment under those circumstances. The committee reached this result after considering Opinions 30, 118, 192, and 262 of the American Bar Association's ethics committee. The vote was 9-0.

Currency note

This opinion was issued in 1949, 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; conflicts of this kind are now addressed by ABA Model Rule 1.7 (concurrent conflicts) and Model Rule 1.11 (conflicts for current and former government officers and employees), with imputation rules governing when a partner's conflict reaches the firm. Treat this page as historical context, not current guidance.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: Does the bar fall only on the county attorney, or on the whole firm?

A: The committee held that neither the county attorney nor his partner may accept the defense employment. The conflict reaches the partner, not just the prosecutor himself.

Q: Did it matter that the prosecution was in a different county from where the county attorney served?

A: No. The opinion addressed a felony prosecution in another Texas county and still found the employment unethical for both the county attorney and his partner.

Q: What authority did the committee rely on?

A: The committee stated it considered ABA ethics Opinions 30, 118, 192, and 262 in reaching the conclusion, and grounded the result in Canon 6 (adverse influences and conflicting interests).

Background and rules framework

The opinion interprets former Texas Canon 6, which addressed adverse influences and conflicting interests, applied to a public prosecutor and, through the firm relationship, his law partner. The modern analogs are ABA Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.11 (special conflict rules for government officers and employees), together with the imputation principles that determine when one lawyer's conflict is shared by the firm.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest), as the modern analog
• MR 1.11 (current and former government officers and employees), as the modern analog
• Texas Canon 6

Other opinions cited:

• ABA Opinions 30, 118, 192, and 262 (considered by the committee)

See also

• TX Ethics Op. 37: County Attorney's Law Partner in Criminal Court
• TX Ethics Op. 32: District Attorney May Not Prosecute a Relative
• TX Ethics Op. 48: County Attorney and Adverse Civil Clients

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-23/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_23.pdf

Original opinion text

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

QUESTION PRESENTED

One member of a law co-partnership being at the time the qualified and acting county attorney of the county of the firm's domicile, is it ethically permissible for another member of such firm to accept retainer from and defend a person then being prosecuted for felony in another Texas county?

18 Baylor L. Rev. 206 (1966)

CONFLICTING INTERESTS - ATTORNEY IN PUBLIC EMPLOY - EMPLOYMENT
A member of a law firm who is county attorney in the county of the firm's domicile, or his partner, may not defend a person then being prosecuted for a crime in another Texas county.

Canon 6.

It would be unethical for either the county attorney or his partner to accept employment under the stated circumstances. In reaching the foregoing conclusion, we considered Opinions 30, 118, 192 and 262 of the Ethics Committee of the American Bar Association. (9-0)

Tex. Comm. On Professional Ethics, Op. 23 (1949)