Texas Professional Ethics Committee Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the Texas Professional Ethics Committee, with full citations and source links on every page.
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If my law partner is a part-time municipal court judge, can I defend criminal cases in that municipal court before the other judges?
Per the Committee, only with the defendant client's informed consent: the part-time judge's personal-interest conflict under Rule 1.06(b)(2) is imputed to the law partner by Rule 1.06(f), so the partn…
Can a prosecutor (or anyone in the prosecutor's office) prosecute a defendant whose bail bondsman is the prosecutor's spouse?
Per the Committee, not unless the government consents under Rule 1.06(c), or unless on the specific facts the prosecution does not reasonably appear to be adversely limited by the prosecutor's respons…
Can a Texas prosecutor make criminal defense lawyers promise not to give file materials to their clients and waive court-ordered discovery as a condition of open-file access?
Per the Committee, no; because the Michael Morton Act (Tex. Code Crim. Proc. art. 39.14) requires an open-file policy without preconditions, a prosecutor who conditions the required disclosures on def…
Can a Texas district attorney publish on the office website the names of people charged with DWI over a holiday to deter drunk driving?
Per the Committee, yes; publishing the names of all those charged with DWI during a holiday period does not by itself violate the rules, provided the charges rest on probable cause, the purpose is to …
Can a prosecutor require, and defense counsel agree, that documents the prosecutor produces may be shown to the defendant but not copied for the defendant?
Per the Committee, yes. Nothing in the Disciplinary Rules prohibits a prosecutor from conditioning production on, or defense counsel from signing, an agreement that the documents are State property, m…
Can a Texas district attorney investigate or prosecute a local official the DA's office previously represented on matters tied to the official's public duties?
Per the Committee, only if the former-client protections of Rule 1.09 and the current-client conflict rule (Rule 1.06) are both satisfied: no reasonable probability of misusing the official's confiden…
Can a prosecutor make a plea deal waive appeals for prosecutorial misconduct and ineffective assistance, and can defense counsel advise on and sign it?
The Committee concludes the rules do not bar a prosecutor from including such a waiver when the defendant is represented, but the waiver does not excuse the prosecutor from Rule 3.09; defense counsel …
Can I defend criminal cases in the same county where my spouse works as an assistant district attorney?
Only with consent. The Committee concludes a lawyer's representation of criminal defendants in the county where the lawyer's spouse is an assistant DA is adversely limited under Rule 1.06(b)(2); the d…
If I am elected district attorney, can I prosecute someone I previously defended as their criminal defense lawyer?
The Committee concluded a newly elected DA may not prosecute a former client's probation revocation in a case the lawyer defended (regardless of consent), may not prosecute a former client in a new ca…
Can a prosecutor try a criminal case when the complaining witnesses are other lawyers in the same district attorney's office?
The Committee concluded the prosecuting attorney should ask the court to appoint new counsel for the state, because DR 5-101(B) and DR 5-102(A) disqualify a lawyer whose office colleague will testify,…
If a lawyer serves as county attorney, can the partners or associates in his firm defend criminal cases, at least in other counties?
The Committee concluded that no partner or associate of a county attorney may represent a criminal defendant in any case in any Texas court, because a county attorney is disqualified from being advers…
Can a prosecutor in a criminal case call another prosecutor from the same district attorney's office to testify as a witness?
The Committee concluded that DR 5-102 applies to a district attorney's office and everyone practicing in it as though they were a single firm, so when a prosecutor in the office ought to be called as …
Can a lawyer or district attorney hold a press conference after a trial to call the judge's actions unethical, illegal, and grounds for reversible error?
The Committee concluded that criticizing a trial judge at a post-trial press conference does not violate any Disciplinary Rule, because DR 8-102(B) bars only knowingly false accusations, though such s…
Can a prosecutor threaten to pursue additional pending charges to discourage a convicted defendant from appealing?
The Committee concluded that a prosecutor should not take any action calculated to deny a criminal defendant the full right of due process, including the right to appeal; threatening additional prosec…
Can a county attorney or other public prosecutor also represent a private civil litigant in a case arising from the same accident or occurrence?
The Committee concluded that a public prosecutor (district, county, or city attorney) may not represent any party in a civil matter arising out of an occurrence that is also the subject of criminal in…
Can a county attorney's law partner, associate, or father defend criminal cases, and does court appointment versus private hire change the answer?
The Committee concluded that a County Attorney's disqualification from defending criminal cases extends to his partners and associates in all courts statewide, even in a civil-only practice, under Can…
Can a prosecuting attorney represent a city policeman in a civil overtime-wage suit when the same facts might require a criminal prosecution?
The Committee concluded that it would be unethical for a prosecuting attorney to represent a policeman in a civil overtime-wage suit against the City under statutes whose violation he might have to in…
Can a district attorney's law firm represent the surety in a county's civil suit over a misappropriation the DA first presented to a grand jury?
The Committee concluded that the firm of a district attorney who presented the misappropriation facts to a grand jury may not ethically represent the bonding company defendant in the county's later ci…
Can a prosecutor write to the jurors after an acquittal to tell them about the defendant's record and the evidence the law kept out?
The Committee concluded that the letter was improper under Canon 29; writing jurors to suggest the law unjustifiably withheld relevant evidence, and to present excluded matter about the defendant's ch…
Can a former assistant county attorney, and his law partner, defend a person the lawyer had handled as a prosecutor while in office?
The Committee concluded that no member of a law firm may represent a criminal defendant if one of the firm's members, while previously serving as an assistant county attorney, had handled or worked on…
Can a county attorney interview an arrested person in jail to decide whether to prosecute and to testify at trial, when someone else in the office tries the case?
The Committee concluded that a county attorney or assistant may see and talk with a jailed accused shortly after arrest in order to later testify, provided the accused has no attorney at the time, and…
Can a county attorney privately defend an out-of-state father in a child-support contempt case when the only other local lawyer represents the mother and plans a criminal nonsupport prosecution?
The Committee concluded that a County Attorney, in his private practice, may not defend an out-of-state father in a civil contempt action for failing to support his children when the mother's attorney…
Can a lawyer help defend a criminal case when his law partner is the county attorney, even if that partner stays out of the prosecution?
The Committee concluded that the law partner of a county attorney may not assist in the defense of a criminal case in district court, and that this is true whether or not the county attorney participa…
What private legal work may a district attorney, county attorney, or county judge take on, and can they use county offices and staff for it?
The Committee concluded that district attorneys, county attorneys, and county judges may not accept private employment that is adverse to the State or county, forbidden by statute, obtained because of…
Can a prosecutor's non-lawyer investigators work out a guilty plea with a jailed defendant who has a lawyer, without involving that lawyer?
No. The Committee unanimously concluded that a district attorney who, through non-lawyer investigators, works out guilty pleas with represented prisoners without consulting their counsel violates Cano…
Can a prosecutor (or his firm) take a contingent-fee civil damage suit arising from the same accident he is prosecuting criminally?
No. A majority concluded that a district attorney prosecuting a defendant over a highway accident may not, and neither may members of his law firm, press a civil damage suit growing out of the same ac…
Can a prosecutor question a represented criminal defendant, seek a guilty plea, or order a lie-detector test without the defense lawyer's consent?
No. The Committee unanimously concluded that, because a criminal defendant is a 'party' under Canon 9, a district attorney or his staff may not attempt to elicit a confession or plea of guilty, or sub…
Can a lawyer serve as district attorney while remaining a member of a private law firm?
Yes, by a bare majority. The Committee concluded (5-4) that a lawyer may continue as a member of a law firm while holding the office of district attorney, so long as no member of the firm takes a civi…
Must a criminal defense lawyer who spots a fatal defect in the indictment point it out to the court or prosecutor?
No, by majority. The Committee concluded (6-4) that a lawyer defending a criminal case is not required to call attention to a fatal defect in the client's indictment; there is no obligation to help th…
Can a county attorney who prosecutes misdemeanors take paid employment as a special prosecutor in felony cases in the same county?
Yes, conditionally. A majority of the Committee (5-3) concluded that if the county attorney has no duty to prosecute or assist in prosecuting felony cases, the Canons do not prohibit him from acceptin…
Can a law firm seek a pardon or parole for a prisoner when a firm member, as a former district attorney, prosecuted and convicted that prisoner?
The Committee deadlocked. It split evenly (4-4) on whether a firm may accept employment seeking a prisoner's pardon or parole when a member of the firm, as the former district attorney, prosecuted and…
Can a district attorney prosecute defendants his former law firm was hired to defend, even though he never actively worked on the case?
No. The Committee concluded (7-0) that it would violate Canon 6 for a district attorney to represent the State against defendants his former firm had been employed to defend, because he was their atto…
Can a district attorney prosecute a husband for child desertion while also representing the wife in her divorce action?
No. The Committee unanimously concluded (9-0) that prosecuting the husband for the State while taking private employment for the wife in a closely related divorce is a representation of conflicting in…
Can a prosecutor have a criminal defendant examined by doctors during trial without the defense lawyer's knowledge or consent?
No. The Committee unanimously concluded (10-0) that for a prosecuting attorney to have the defendant examined by doctors during trial without the knowledge or consent of defense counsel violates Canon…
Can a criminal district attorney prosecute a case against his own relative?
The Committee held unanimously (10-0) that a criminal district attorney may not prosecute a relative, because doing so offends the spirit of Canon 6 on adverse influences and conflicting interests; he…
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?
The Committee held unanimously (9-0) that a lawyer who is county attorney in the county of the firm's domicile, and his partner, may not accept a retainer to defend a person being prosecuted for a cri…
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Legal ethics opinions from the Texas Professional Ethics Committee interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.