Can a prosecutor (or his firm) take a contingent-fee civil damage suit arising from the same accident he is prosecuting criminally?

Plain-English summary

The inquiry asked whether a public prosecutor representing the State in criminal charges against "A" arising out of a highway accident could accept contingent-fee employment for "B" to press a civil damage suit (1) against "A" for damages from the accident, or (2) against "A's" employer on a respondeat-superior theory, and (3) whether it would differ if other members of the prosecutor's firm conducted the civil suits.

A majority found a violation in each instance (7-2). Members designated the canons violated variously as Texas Canons 5, 6, 9, and 33 and American Bar Canons 6, 9, and 36, citing ABA Opinions 135 and 39. The interest of a prosecutor in his duty to the public was deemed generally adverse to his duty to a client in a civil case growing out of an occurrence that involved a possible criminal violation.

The Committee also pointed out that a prosecutor is in a position to obtain information from persons confronted with criminal violations, often before they are represented by counsel, which he normally could not obtain as opposing counsel in a civil case, and that he should not be placed in a position to use such information to the detriment of the opposing party.

Currency note

This opinion was issued in 1957, 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 Treat this page as historical context, not current guidance.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 a prosecutor take the civil case arising from a crime he was prosecuting?

A: No. A majority found a violation in each scenario presented, treating the prosecutor's public duty as generally adverse to a civil client's interest in a suit from the same occurrence (7-2).

Q: Did it matter if the prosecutor's law partners, not the prosecutor himself, handled the civil suit?

A: The majority found a violation in that scenario too; the conflict extended to members of the firm to which the prosecutor belonged.

Q: What was the concern about information?

A: The Committee noted the prosecutor could obtain information from persons facing criminal charges, often before they had counsel, that he could not obtain as opposing civil counsel, and should not be positioned to use it against the opposing party.

Background and rules framework

The opinion interprets former Texas Canons 5, 6, 9, and 33 and references American Canons 6, 9, and 36, addressing the conflict between a prosecutor's public duty and private civil representation arising from the same matter. The modern analogs are ABA Model Rule 1.7 (conflict of interest, current clients) and Model Rule 1.11 (special conflicts for current and former government officers and employees).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest, current clients), as a modern analog
• MR 1.11 (special conflicts for government officers and employees), as a modern analog
• Texas Canons 5, 6, 9, and 33 (designated variously by members)
• American (ABA) Canons 6, 9, and 36

Other opinions cited:

• ABA Opinions 135 and 39: cited by some members in support

See also

• TX Ethics Op. 187: County Attorney's Partner in Defense
• TX Ethics Op. 162: Lawyer-Legislator Prosecuting an Authorized Claim
• TX Ethics Op. 144: Investigators and Guilty Pleas

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-143/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_143.pdf

Original opinion text

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

QUESTION PRESENTED

Is it a violation of the Canons of Ethics for an attorney actively engaged as a public prosecutor representing the State in criminal charges against "A" arising out of a highway accident, to accept employment on a contingent fee basis on behalf of "B" to press a civil damage suit (1) against "A" for damages allegedly resulting from such highway accident, or (2) against "A's" employer where liability against such employer is predicated solely upon the alleged acts of "A" in the course and scope of his employment, and (3) would the situation be any different such civil actions were brought and conducted by other members of the law firm of which such public prosecutor was a member?

18 Baylor L. Rev. 255 (1966)

PROSECUTION OF THOSE ACCUSED OF CRIME - CONFLICTING INTERESTS - RETIREMENT FROM PUBLIC EMPLOYMENT - DISTRICT ATTORNEY REPRESENTING CIVIL SUITORS
Where a district attorney is prosecuting a defendant in criminal proceedings growing out of a highway accident, it would be improper far him or members of the law firm to which he belongs, to press a civil damage suit growing out of the same accident against the same defendant since his duty to the public is generally adverse to his duty to the client in the civil litigation.

NEGOTIATIONS WITH OPPOSITE PARTY
In prosecuting the criminal violation, the district attorney might be in a position to obtain information which, as an opposing attorney in a civil case, would not otherwise be available to him, this possibility precludes him from representing civil litigants in a suit arising out of the criminal violation.

Canons 5, 6, 9, 33. A.B.A. Canons 6, 9, 36.

A majority of the members of the committee were of the opinion there was a violation of the Canons of Ethics in each instance; Opinions 135 and 39 of the American Bar Association being cited by some of the members in support of their position. Canons violated were designated (differently by various members) as Texas Canons 5, 6, 9 and 33 and American Bar Canons 6, 9 and 36. The interest of a prosecutor in his duty to the public was deemed to generally be adverse to his duty to a client in a civil case growing out of an occurrence which involved a possible criminal violation.

It was also pointed out that a public prosecutor was in a position to obtain information from persons confronted with criminal violations (often before represented by counsel) which as an opposing attorney in a civil case he normally could not obtain and that he should not be placed in a position to use such information to the detriment of the opposing party. (7-2)

Tex. Comm. On Professional Ethics, Op. 143 (1957)