Can a city attorney also represent criminal defendants in courts other than the city's corporation court?

Plain-English summary

The inquiry asked two questions under Canon 6: whether a city attorney may represent persons charged with crime in any court other than the corporation court, and whether he may do so where city policemen will appear as the State's witnesses.

On the first question, all but one member of the committee concluded that a city attorney's practice of criminal law in any court other than the corporation court is permissible and not in violation of the Canons (8-1).

On the second question, the committee was divided, but the majority concluded that representing a defendant in a court other than the corporation court where city policemen will be state's witnesses would not, in itself, violate the canons. The committee held that the ethics of such representation depend on the facts of the particular case, and that the city attorney should conduct himself so as to remain above suspicion, even at personal financial sacrifice, and should never use his office to gain advantage.

Currency note

This opinion was issued in 1952, 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 arising from a lawyer's public office are now addressed by ABA Model Rule 1.7. Treat this page as historical context, not current guidance.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 city attorney maintain a private criminal-defense practice?

A: Yes, in courts other than the corporation court. The committee held (8-1) that this practice is permissible and not a Canon violation.

Q: What about defending a case where city police are the State's witnesses?

A: The committee's majority held that such representation is not, in itself, a violation, but said the ethics turn on the facts of the particular case and cautioned that the city attorney should remain above suspicion and never use his office for advantage.

Background and rules framework

The opinion interprets former Texas Canon 6, which governed adverse influences and conflicting interests, as applied to a city attorney engaged in private criminal practice. The modern analog is ABA Model Rule 1.7 (conflicts of interest), under which a public lawyer's outside representation is assessed against competing duties and interests.

Citations and references

Rules of Professional Conduct:

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

See also

• TX Ethics Op. 48: County Attorney in Private Civil Practice
• TX Ethics Op. 65: Firm Member Before a Body the Partner Serves
• TX Ethics Op. 69: Court-Appointed Ad Litem Later Hired by Defendants

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-49/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_49.pdf

Original opinion text

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

QUESTION PRESENTED

Is it ethical for a city attorney to represent persons charged with crime in any court other than the corporation court?
Is it ethical for a city attorney to represent persons charged with crime in courts other than the corporation court where policeman of the city will testify as state's witnesses?

18 Baylor L. Rev. 217 (1966)

CONFLICTS OF INTERESTS - EMPLOYMENT - CITY ATTORNEY
A city attorney may practice criminal law in courts other than the corporation court.

CONFLICTS OF INTERESTS - EMPLOYMENT - CITY ATTORNEY
The fact that a city attorney represented persons charged with crime in courts other than the corporation court where city policemen testified as state's witness, in itself is not a violation of the Canons.

Canon 6.

All but one of the members of the committee are of the opinion that the practice of criminal law by a city attorney in any court other than the corporation court is permissible and not in violation of the Canons of Ethics. (8-1)
The committee is divided on whether or not the city attorney should be permitted to represent a person charged with crime in a court other than the corporation court where city policemen will be state's witnesses. The majority, however, are of the opinion that such representation in itself would not be in violation of the canons of legal ethics. All were of the opinion that the ethics of such representation would have to be based on the facts in the particular case and that in all events the city attorney should so conduct himself as to remain above all suspicion, even at personal financial sacrifice, should very carefully guard against situations that might give rise to criticism, not only of him personally but also of the Bar generally, and that he should, under no circumstances, use his office to gain advantage.

Tex. Comm. On Professional Ethics, Op. 49 (1952)