Can an assistant city attorney refuse to stop representing the city after being discharged, on the ground that civil service rules protect the lawyer's job?
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This page answers the general question as of 2010. Ezel answers yours: whether it's allowed on your facts, under the current Texas Rules of Professional Conduct, with citations.
Plain-English summary
The opinion addresses an assistant city attorney covered by a city charter's civil-service provisions, under which a covered employee may not be terminated without "due cause" and may appeal a termination to a civil service commission that can order reinstatement. The city proposes to terminate the lawyer's employment.
The Committee distinguishes the lawyer's responsibilities as a lawyer, governed by the Disciplinary Rules, from the lawyer's rights as an employee, which may be governed by Texas common law, contract, or statute. Assuming the city has decided through its proper processes that it no longer wants the lawyer to represent it, the Rules govern the lawyer's conduct as counsel. Rule 1.15(a)(3) requires a lawyer to withdraw when "discharged, with or without good cause," the only exception being a tribunal's order to continue under Rule 1.15(c). On withdrawal, Rule 1.15(d) requires the lawyer to take reasonably practicable steps to protect the client's interests.
The Committee concludes the client's decision to end the representation must be respected regardless of the lawyer's employment rights against the city as an employer. The civil-service protections may bear on the lawyer's job, but they do not allow the lawyer to keep acting as the city's lawyer after the city has discharged the lawyer from that role.
In practice
Under this opinion, and under the Texas rules as they stood at the time, an assistant city attorney cannot rely on civil-service job protections to keep representing the city after being discharged from the representation. The Committee separates the lawyer's employment rights (which civil-service rules may protect and which the lawyer can pursue through the civil service commission) from the professional duty under Rule 1.15(a)(3) to withdraw on discharge, with or without good cause, subject only to a tribunal's order to continue under Rule 1.15(c). The opinion also points to Rule 1.15(d)'s requirement to take reasonable steps to protect the client's interests on withdrawal.
Common questions
Q: My city is firing me as assistant city attorney, but civil service rules protect my job. Can I keep representing the city?
A: No. Per Opinion 601, Rule 1.15(a)(3) requires you to withdraw when discharged, with or without good cause; your employment protections are separate and do not let you continue the representation against the city's decision.
Q: Do the civil-service protections count for anything?
A: Yes, but as to employment, not the representation. The Committee says the lawyer's rights as an employee may be governed by common law, contract, or statute and can be pursued separately, but they do not override the lawyer's professional duty to withdraw.
Q: Is there any exception to withdrawing on discharge?
A: One. The Committee notes Rule 1.15(c) requires a lawyer to continue if a tribunal orders it; otherwise, the lawyer must withdraw and, under Rule 1.15(d), take reasonable steps to protect the client's interests.
Background and rules framework
The opinion interprets Texas Disciplinary Rule 1.15 (declining or terminating representation), which corresponds to ABA Model Rule 1.16, including 1.15(a)(3)'s mandatory withdrawal on discharge, 1.15(c)'s exception for a tribunal's order to continue, and 1.15(d)'s duty to protect the client's interests on withdrawal. The opinion expressly leaves the lawyer's employment rights to other law (common law, contract, or statute).
Citations and references
Rules of Professional Conduct:
- MR 1.16 (declining or terminating representation)
- Texas Disciplinary Rule 1.15(a)(3), 1.15(c), and 1.15(d)
See also
Source
- Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-601/
- Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_601.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
QUESTION PRESENTED
Under the Texas Disciplinary Rules of Professional Conduct, may a lawyer employed by a city as an assistant city attorney refuse to withdraw from legal representation of the city because the lawyer is protected from termination of employment by civil service employment provisions of the city charter?
STATEMENT OF FACTS
A lawyer, who is employed by a city as an assistant city attorney, is covered by provisions of a city charter under which (1) a covered city employee may not be terminated from employment without “due cause” and (2) a covered city employee may appeal termination to a civil service commission that has power to direct reinstatement of employment. The city proposes to terminate the lawyer’s employment.
DISCUSSION
In the case of a lawyer who is an employee of a governmental entity, there is a clear distinction between the responsibilities of the lawyer under the Texas Disciplinary Rules of Professional Conduct and the lawyer’s rights and responsibilities as an employee of the governmental entity. The lawyer’s responsibilities as a lawyer are governed by the Texas Disciplinary Rules of Professional Conduct. Depending on the circumstances, the lawyer’s rights and responsibilities as an employee of the governmental entity may be governed by Texas common law, contract, or statute.
Assuming the city has determined through its duly constituted processes that it no longer desires the lawyer to represent the city, the Texas Disciplinary Rules of Professional Conduct govern the lawyer’s responsibilities as a lawyer in this situation. Rule 1.15(a) requires that, with a sole exception in the case of a tribunal’s order to the contrary (as provided in Rule 1.15(c)), a lawyer “shall withdraw” from representation of a client if “(3) the lawyer is discharged, with or without good cause.” Thus, except in the case where a tribunal’s order requires representation to continue, the lawyer must withdraw as a lawyer for the client if the client discharges the lawyer for any reason. Rule 1.15(d) requires that, upon terminating representation of a client, “a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests . . . .” A client’s decision as to the termination of a lawyer’s representation of the client will apply and must be respected by the lawyer regardless of any rights of the lawyer as an employee vis-à-vis the client as an employer.
CONCLUSION
Under the Texas Disciplinary Rules of Professional Conduct, a lawyer employed by a city as an assistant city attorney may not refuse to withdraw from legal representation of the city because the lawyer is protected from termination of employment by civil service employment provisions of the city charter.
Tex. Comm. On Professional Ethics, Op. 601 (2010)
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