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?

Plain-English summary

Lawyer X, a recent law graduate, practiced civil law as a partner with his father, Y, the county attorney, in a small town; office expenses came out of the civil practice and the remainder was split equally, with Y keeping his county-attorney salary. The inquiry asked whether X would violate the Canons by helping outside attorney Z defend a criminal murder case in district court for a substantial fee, both where Y would assist the district attorney in prosecuting and where Y would not. The Committee concluded it would be a violation in either case (8-0).

The Committee's view was that it would violate the Canons for X to assist Attorney Z in the murder case, and that this is true whether or not X's father and partner, Y, assisted the district attorney in the prosecution. The Committee noted the question had already been answered in Opinions 23, 37, and 132, and cited Canon 6 and ABA Opinions 30, 118, and 262.

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 Treat this page as historical context, not current guidance.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 county attorney's law partner defend a criminal case in district court?

A: No. The Committee concluded the partner may not assist in the defense, treating the prosecutor's disqualification as imputed to his partner under Canon 6 (8-0).

Q: Does it matter whether the county attorney actually prosecutes the case?

A: No. The Committee said the result is the same whether or not the county attorney assists the district attorney in the prosecution.

Q: Does the partner keeping separate files and fees change the result?

A: The opinion describes the partners' separate files and fee arrangements but still found a violation, relying on the imputation principle of prior Opinions 23, 37, and 132.

Background and rules framework

The opinion interprets former Texas Canon 6 (conflicting interests), as applied to imputing a prosecutor's disqualification to his law partner. The modern analogs are ABA Model Rule 1.7 (conflict of interest, current clients) and Model Rule 1.10 (imputation of conflicts within a firm).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest, current clients) and MR 1.10 (imputation of conflicts), as the modern analogs
• Texas Canon 6 (former canon on conflicting interests)

Other opinions cited:

• Texas Opinions 23, 37, and 132 (imputation of a prosecutor's disqualification to a partner)
• ABA Opinions 30, 118, and 262

See also

• TX Ethics Op. 217: County Attorney's Private Practice Conflict
• TX Ethics Op. 243: Former Prosecutor's Partner Disqualified
• TX Ethics Op. 197: A City Commissioner's Law Partner

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-187/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_187.pdf

Original opinion text

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

QUESTION PRESENTED

Lawyer X, a recent graduate of law school, is engaged in civil practice as a partner with his father, Y, in a small town of six thousand population. Y is, and has been for many years, the county attorney in the county in which they practice. Office expenses are taken out of the proceeds of the civil practice and the remainder divided equally. The county attorney's salary is retained by Y and X receives no part of it. X has several cases that are his own and for which separate records and files are kept and all proceeds from these matters are retained by X. The firm has one common secretary, but Y has all county attorney files in a separate room under lock. In addition to X and Y there is only one other attorney actively engaged in law practice in the town, although two other attorneys reside in the town, but do little, if any, practice.

In this situation would it be a violation of the Canons of Ethics (1) for X to represent the defendant in a criminal murder case where he will receive a substantial fee to assist Attorney Z who has no connection with X or Y and lives in a neighboring cityΧY will assist the district attorney in prosecuting the case, (2) for X, under the same situation as outlined under (1) above, to take such employment if Y did not assist in the prosecution?

18 Baylor L. Rev. 282 (1966)

CONFLICT OF INTERESTS - EMPLOYMENT - LAW PARTNER OF COUNTY A TTORNEY
The law partner of a county attorney may not assist in the defense of a criminal case in the district court, regardless of whether the county attorney participates in the prosecution thereof.

Canon 6.

It is the opinion of the committee that it would be a violation of the Canons of Ethics for X to assist Attorney Z in the murder case and this would be true whether or not X's father and partner, Y, assisted the district attorney in the prosecution of the case. This inquiry has already been answered by the Committee in its Opinions Nos. 23, 37 and 132. ( See Canon 6; also ABA Opinions Nos. 30,118, 262.) (8-0.)

Tex. Comm. On Professional Ethics, Op. 187 (1958)