TX 1959

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?

Short answer: 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 intends to seek the father's criminal prosecution for nonsupport if the civil action fails, because the conflicts or potential conflicts of interest would violate Canon 6.

Apply this to your situation

This page answers the general question as of 1959. Ezel answers yours: whether it's allowed on your facts, under the current Texas Rules of Professional Conduct, with citations.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

The inquiry came from a rural county with only two practicing lawyers, the County Attorney and one other, with the nearest other attorney twenty-nine miles away. The County Attorney was asked, in his private capacity, to defend an out-of-state father in a civil contempt proceeding for failing to support his children as ordered in a divorce decree. The mother's attorney, the only other lawyer in the county, intended to prosecute the father criminally for nonsupport if the civil action did not produce the desired result, and the County Attorney was aware of this.

The Committee held the County Attorney may not represent the father in the civil case. Because of the conflicts, or potential conflicts, of interest, representing the father would violate Canon 6. The Committee cited its earlier Opinions 48, 109, and 184. The vote was 8-0.

Currency note

This opinion was issued in 1959, 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 Treat this page as historical context, not current guidance.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 take a private client whose matter could lead to a criminal prosecution his office would bring?

A: Under these facts, no. The Committee held the County Attorney may not privately defend the father because the conflicts or potential conflicts of interest would violate Canon 6.

Q: Did the shortage of lawyers in the county change the result?

A: No. Even though the County Attorney and the mother's lawyer were the only two attorneys in the county, with the nearest other lawyer twenty-nine miles away, the Committee still held the representation would violate Canon 6.

Q: What created the conflict?

A: The mother's attorney intended to seek the father's criminal prosecution for nonsupport if the civil contempt action failed, and the County Attorney, who knew this, would face conflicts or potential conflicts of interest in defending the father.

Background and rules framework

The opinion interprets former Texas Canon 6, on the representation of conflicting interests, as applied to a County Attorney who was asked to defend, in private practice, a father whose nonsupport could lead to a criminal prosecution. The Committee cited its earlier Opinions 48, 109, and 184. The modern analog is ABA Model Rule 1.7 (conflicts involving current clients).

Citations and references

Rules of Professional Conduct:

MR 1.7 (conflict of interest; current clients), as the modern analog
Texas Canon 6 (former canon)

Other opinions cited:

Texas Ethics Opinions 48, 109, and 184: conflicting representation and public-officer employment

Source

Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-217/
Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_217.pdf

Original opinion text

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

QUESTION PRESENTED

Is it ethical for the County Attorney in his private capacity to defend an out of state father in contempt of court proceedings for failure to support his children residing in the county as ordered in a divorce decree, when the only other lawyer in the county is representing the mother and intends to prosecute the father in a criminal action for such failure to support his children if the civil action does not accomplish the desired results, all of which the County Attorney is aware? The County Attorney and the mother's attorney are the only two lawyers practicing law in the county, and the nearest town with a practicing lawyer is twenty-nine miles away.

18 Baylor L. Rev. 301 (1966)

CONFLICTS OF INTERESTS - EMPLOYMENT- COUNTY ATTORNEY IN PRIVATE PRACTICE
A County Attorney in his private practice may not represent an out of state father in a civil action for contempt of court for failure to support his children residing in the county, as required by a divorce decree, when the attorney for the mother intends to seek criminal prosecution of the father for such failure if the civil action does not accomplish the desired results.

Canon 6.

Under the circumstances outlined in this inquiry the County Attorney may not represent the father in the civil case; due to conflicts, or potential conflicts, of interests, representation of the father would violate Canon 6. See Opinions 48, 109, 184. (8-0.)

Tex. Comm. On Professional Ethics, Op. 217 (1959)

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