After a court-appointed attorney ad litem loses for absent defendants, can the same lawyer be hired by those defendants to reopen the judgment?

Plain-English summary

A lawyer was appointed by the court to act as attorney ad litem for nonresident defendants who had been cited by publication in a trespass-to-try-title suit. The plaintiff claimed title by limitation, all papers that could be checked appeared regular on their face, judgment was entered for the plaintiff after a hearing, and the ad litem was awarded a nominal fee. After the judgment, several of the nonresident defendants learned of the suit, contacted the lawyer who had served as attorney ad litem, and furnished evidence that would be a defense to the limitation claim.

The Committee was of the view that it would not violate any of the Canons for the lawyer to accept employment from those defendants and to take whatever action might be necessary to see that their interests are fully protected, including having the case reviewed and the judgment set aside. The vote was 9-0.

Currency note

This opinion was issued in 1953, 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 Treat this page as historical context, not current guidance.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 the former attorney ad litem represent the same defendants after the judgment?

A: Yes. The Committee found no Canon violation in the lawyer accepting employment from the nonresident defendants the lawyer had served as ad litem (9-0).

Q: What action could the newly retained lawyer take?

A: Whatever was necessary to protect the defendants' interests, including seeking to have the case reviewed and the judgment set aside.

Q: Why was there no conflict in switching from court appointment to private retention?

A: As ad litem the lawyer had been charged with protecting these same defendants' interests, so continuing to represent those interests after judgment did not put the lawyer adverse to a prior client.

Background and rules framework

The opinion interprets former Texas Canon 6 (adverse influences and conflicting interests), applied to a court-appointed attorney ad litem who is later retained by the same absent defendants. The modern analog is ABA Model Rule 1.7 (conflict of interest: current clients).

Citations and references

Rules of Professional Conduct:

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

See also

• TX Ethics Op. 71: Will Drafter as Executor or Beneficiary
• TX Ethics Op. 74: Creditors' Lawyer Taking an Estate Fee
• TX Ethics Op. 104: Imputed Conflict From a New Partner

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-69/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_69.pdf

Original opinion text

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

QUESTION PRESENTED

An attorney was appointed by the Court to act as Attorney Ad Litum for certain nonresident defendants who had been cited by publication in a Trespass to Try Title. Plaintiff was claiming title by limitation, all papers which could be checked appeared regular on their face, and upon a hearing judgment was entered for plaintiff and the attorney was awarded a nominal fee. Following the entry of such judgment, several of such nonresident defendants learned of the suit, contacted the attorney who had acted as Attorney Ad Litem, and furnished him with evidence which would be a defense to said claim of limitation title.
Based upon the foregoing state of facts, would it be a violation of any of the Canons of Ethics for such attorney to accept employment from said nonresident defendants, and to take such action as may be necessary to have the case reviewed and the judgment set aside?

18 Baylor L. Rev. 226 (1966)

EMPLOYMENT - ATTORNEY AD LITUM
An attorney appointed Attorney Ad Litum by the Court for nonresident defendants cites by publication in a Trespass to Try Title, may upon being contacted by the defendants and furnished with evidence which would be a defense to plaintiff's claim of limitation, following the entry of judgment for plaintiff, accept employment from the defendants and attempt to have the case reviewed and judgment set aside.

Canon 6.

It is the view of this committee that it would not be a violation of any of the Canons of Ethics for such attorney to accept employment, and to take whatever action may be necessary to see that the interests of such nonresident defendants are fully protected. (9-0)

Tex. Comm. On Professional Ethics, Op. 69 (1953)