Can a lawyer-legislator who sponsored a resolution letting a constituent sue the State then take the case and prosecute that suit?

Plain-English summary

The inquiry described a member of the Texas Legislature, A, who at the request of his constituent B introduced and helped pass a resolution permitting B to sue the State, after B had been wrongfully convicted and imprisoned for two years before being found innocent and pardoned. A acted without compensation, contract, or fee. The question was whether A, a practicing attorney, could later accept employment from B and prosecute the claim against the State, or whether he was disqualified by his connection with the legislation.

All members agreed it would be unethical for the legislator to accept employment to sue the State on a claim authorized by legislation he sponsored (9-0). Although the Committee found no specific Texas Canon exactly covering the situation, it viewed the practice as a violation of the spirit of Canon 6 against representing conflicting interests and Canon 33 against a public officeholder later accepting employment in a matter he acted on as an officer, reasoning that allowing it might improperly influence legislators' actions by the hope of later employment in litigation. Several members expressed reluctance to condemn the practice given that the claim was just, the legislator had a duty to sponsor the legislation, the litigation would be largely a formality except as to amount, and many lawyer-legislators hold retainers that could likewise influence legislation.

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 Treat this page as historical context, not current guidance.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: Can a lawyer-legislator later represent a constituent on a claim he helped authorize by statute?

A: The Committee concluded it would be unethical to accept employment to sue the State on a claim authorized by legislation the lawyer sponsored.

Q: Which Canons did the Committee rely on, given no exact fit?

A: The Committee found no specific Canon exactly on point but treated the conduct as contrary to the spirit of Canon 6 (conflicting interests) and Canon 33 (a public officer later accepting employment in a matter he acted on).

Q: Was the Committee unanimous in its reasoning?

A: The conclusion was unanimous (9-0), though several members expressed reluctance to condemn the practice given the justness of the claim and the legislator's duty to sponsor the legislation.

Background and rules framework

The opinion interprets former Texas Canons 6 (conflicting interests) and 33 (a public officeholder later accepting employment in a matter acted on in office). The modern analog is ABA Model Rule 1.11 (special conflicts of interest for former and current government officers and employees).

Citations and references

Rules of Professional Conduct:

• MR 1.11 (special conflicts for former and current government officers), as the modern analog
• Texas Canons 6 and 33 (former canons on conflicting interests and on public officers later accepting related employment)

See also

• TX Ethics Op. 183: District and County Attorneys in Private Practice
• TX Ethics Op. 184: Conflicts of Interest in Public Employment
• TX Ethics Op. 173: A County Judge Practicing Law and Keeping His Name in the Firm

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-162/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_162.pdf

Original opinion text

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

QUESTION PRESENTED

A, being a member of: the Texas Legislature, at the request of B, one of his constituents and a resident of his County, introduced a Resolution in the House of Representatives seeking permission for B to sue the State by reason of B having been wrongfully convicted and imprisoned in the penitentiary for two years before it was determined he was innocent and was pardoned. Since A without compensation or any contract or fee, introduced and secured the passage of such Resolution in the House and was instrumental in securing its passage in the Senate, can A (a practicing attorney) ethically later accept employment from B and file suit to prosecute such claim to judgment against the State, or is A disqualified by reason of his connection with such legislation?

18 Baylor L. Rev. 265 (1966)

RETIREMENT FROM PUBLIC EMPLOYMENT - LEGISLATORS
Where a legislator, who is also an attorney, secures passage of a Resolution granting one innocently convicted of a crime permission to sue the State for damages, the legislator is disqualified to prosecute the suit against the State.

Canons 6, 33.

All members of the committee agree that it would be unethical for the Legislator to accept employment to sue the State on a claim on which suit was authorized by legislation which he sponsored in the Legislature.

Although no specific Texas Canon seems to exactly cover this situation, it was the view that such practice would constitute a violation of the spirit of Texas Canon 6 against representing conflicting interests and Texas Canon 33 against a holder of public office subsequently accepting employment in a matter which he acted upon as such public officer. It was felt that if a lawyer legislator could ethically accept employment under such circumstances, the action of some legislators toward legislation might be improperly influenced by the hope of employment in subsequent litigation.

However, several members expressed reluctance at having to condemn such practice as unethical in the given situation since (a) the claim was just, (b) the Legislator was under a duty to sponsor such legislation and was responsible for plaintiff being in a position to collect (c) the litigation would be largely a formality except for the amount, and (d) because it is common knowledge that many lawyer legislators are on legal retainer fees which are naturally calculated to improperly influence legislation of the subject matter embraced by such retainers and the conduct condemned in the instant case by comparison seems less subject to censure. (9-0)

Tex. Comm. On Professional Ethics, Op. 162 (1957)