Can a lawyer pay an assistant county attorney part of a fee for referring a civil case, and must he withdraw when he learns the client already has counsel?

Plain-English summary

The inquiry described an assistant county attorney who filed an aggravated-assault complaint arising from a motor-vehicle injury. The injured party, who had already retained a lawyer, asked the assistant county attorney for a recommendation; the assistant county attorney called in a lawyer friend, who took the injured party to his office. After being told the injured party already had a lawyer, and confirming it with that lawyer, the called-in lawyer refused to leave the case, and on settlement demanded more than half the fee, explaining that he had to pay the assistant county attorney $200 for the referral and that he split fees this way with members of the district and county attorneys' offices on civil business referred to him.

On the first question, the Committee concluded the called-in lawyer violated Canon 7 when he refused to leave the case after being told the injured party had already retained a lawyer and apparently being asked not to represent him (9-0). It noted that if the first lawyer had no objection to the second lawyer being in the matter, there would be no violation, but that was not the situation presented.

On the second question, the Committee concluded the splitting of part of the fee between the assistant county attorney and the called-in lawyer violates Canon 31 by both of them (8-1). It stated that it is improper for public officials to use their office to take advantage of legal representations coming through that office in any official way.

Currency note

This opinion was issued in 1958, 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 Treat this page as historical context, not current guidance.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 pay a prosecutor or county attorney for referring civil cases?

A: The Committee concluded that splitting part of the fee with the assistant county attorney for the referral violated Canon 31 for both the official and the lawyer, and that public officials may not use their office to take advantage of representations coming through it.

Q: Must a lawyer withdraw if he learns the client is already represented?

A: The Committee concluded the called-in lawyer violated Canon 7 by refusing to leave after being told the client already had counsel and apparently being asked not to represent him; if the prior lawyer had not objected, there would have been no violation.

Q: Were both lawyers found to have acted improperly on the fee split?

A: Yes. The Committee found the fee-splitting violated Canon 31 by both the assistant county attorney and the lawyer he called into the matter (8-1).

Background and rules framework

The opinion interprets former Texas Canon 7 (encroaching on the employment of another lawyer) and Canon 31 (division of fees). The modern analogs include ABA Model Rule 1.5(e) (division of a fee between lawyers in different firms) and Model Rule 7.2(b) (a lawyer generally may not give anything of value for recommending the lawyer's services).

Citations and references

Rules of Professional Conduct:

• MR 1.5(e) (division of fees between lawyers), as the modern analog
• MR 7.2(b) (payment for recommending a lawyer's services), as the modern analog
• Texas Canons 7 and 31 (former canons on encroaching on another's employment and division of fees)

See also

• TX Ethics Op. 187: County Attorney's Law Partner Defending a Criminal Case
• TX Ethics Op. 183: District and County Attorneys in Private Practice
• TX Ethics Op. 178: Lawyers Taking Work Through a Lay Intermediary

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-172/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_172.pdf

Original opinion text

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

QUESTION PRESENTED

An assistant county attorney filed a complaint against a man charging him with aggravated assault with a motor vehicle. The party who was injured by the motor vehicle was not at fault. The injured party asked the assistant county attorney, while talking to him about the facts of the case if he knew a good lawyer to handle his claim for damages against the driver of the motor vehicle. At the time he made such inquiry of the assistant county attorney, the injured party had already retained a lawyer. The assistant county attorney told the injured party that he would like to recommend a lawyer friend of his and then called in his lawyer friend. The lawyer friend of the assistant county attorney then took the injured party to his office and at that time the injured party told the lawyer who was called in by the assistant county attorney that he had already retained another lawyer. The lawyer who was called in by the assistant county attorney then called the other lawyer and confirmed the fact that the injured party had already retained the other lawyer. But the lawyer who was called in by the assistant county attorney refused to leave the case and when the claim was finally settled such lawyer demanded more than one-half of the fee, giving as his reason that he had to give the assistant county attorney $200 because the assistant county attorney referred the business to him. He stated that he split fees with all the members of the District and County Attorneys' offices on civil business referred to him by them which they could not handle by reason of their official business and their connection with criminal cases out of which the civil business arose.
Did the lawyer who was called in by the assistant county attorney violate any Canons of Ethics by refusing to withdraw from the matter after he was advised that the injured party had already retained another lawyer
Was there a violation of any of the Canons of Ethics by the payment of part of the fee to the assistant county attorney and his acceptance of such payment?

18 Baylor L. Rev. 270 (1966)

PROFESSIONAL COLLEAGUES - ENCROACHING ON PRACTICE OF ANOTHER
When an attorney has been consulted by a client and learns that other counsel has already been engaged, the attorney should withdraw upon the request of the prior counsel.

DIVISION OF FEES - PUBLIC OFFICER AND PRIVATE PRACTITIONER
When an attorney splits his fees with a county attorney which have been earned from civil employment referred to the attorney by the county attorney as an incident to criminal proceedings he has handled, both attorneys act improperly.

Canons 7, 31.

The lawyer who was called in by the assistant county attorney violated Canon No. 7 of the State Bar of Texas when he refused to leave the case after he was told that the injured party had already retained a lawyer and apparently was requested not to represent the injured party. If the first lawyer retained by the injured party had no objection to the second lawyer being in the matter with him, there would be no violation of Canon No. 7 by the second lawyer, but such is not the case submitted in the fact situation presented to the committee. (9-0)
The splitting of part of the fee between the assistant county attorney and the lawyer which he called into the matter is a violation of Canon No. 31 by both the assistant county attorney and the lawyer that he called into the matter. It is improper for public officials to use their office to take advantage of legal representations coming through that office in any official way. (8-1)

Tex. Comm. On Professional Ethics, Op. 172 (1958)