Can a lawyer who sits on a state commission defend a former client in a suit brought by the state, where the commission has no role in the matter?

Plain-English summary

After a lawyer was appointed to the Texas State Highway Commission, the Attorney General filed suit for the state against one of the lawyer's former clients for conspiracy to violate the Motor Carrier Act. The Department of Public Safety, not the Highway Commission, is the agency charged with enforcing that Act; the Commission has no jurisdiction over the Department and no role in administering the Act. Because the alleged violation occurred on a state highway and the lawyer represented the state as a Commission member, the inquiry asked whether defending the former client would violate the Canons.

The Committee held it would not. It was the unanimous opinion of the Committee that the lawyer would not violate any Canon by representing his former client in the suit, because there was no apparent conflict of interest between his position as a member of the Highway Commission and his role as attorney for the client. The vote was 7-0.

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 Treat this page as historical context, not current guidance.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 state commissioner defend a private client the state is suing?

A: On these facts, yes. The Committee unanimously held that a Highway Commission member could defend his former client in a state suit, finding no apparent conflict of interest under Canon 6.

Q: Why was there no conflict despite the lawyer representing the state?

A: The Committee pointed to the Commission's lack of any role in the matter: the Department of Public Safety enforces the Motor Carrier Act, and the Highway Commission has no jurisdiction over that Department or that Act.

Background and rules framework

The opinion interprets former Texas Canon 6, which governed conflicting interests, as applied to a lawyer who held a state office while maintaining a private practice. The modern analogs are ABA Model Rule 1.7, on concurrent conflicts of interest, and Model Rule 1.11, on the conflicts of present and former government officers and employees.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest), as the modern analog
• MR 1.11 (former and current government officers), as the modern analog
• Texas Canon 6 (former canon)

See also

• TX Ethics Op. 274: Lawyer on a City Zoning Board
• TX Ethics Op. 252: Counsel for County and Its Commissioners
• TX Ethics Op. 281: Tax Attorney's Conflicting Roles

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-232/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_232.pdf

Original opinion text

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

QUESTION PRESENTED

After a lawyer's appointment to the Texas State Highway Commission the Attorney General of Texas filed a suit for the state against a former client of this lawyer, for conspiracy to violate the state's Motor Carrier Act. The Department of Public Safety is the state agency charged with the responsibility of enforcing the Motor Carrier Act. The Texas State Highway Commission has no jurisdiction over the Department of Public Safety and has no responsibility in connection with the administration of the Motor Carrier Act.

Since the violation allegedly occurred upon the state's highway, and the lawyer does represent the state as a member of the Highway Commission, would it violate the Canons of Ethics for the lawyer to defend its former client in this suit?

18 Baylor L. Rev. 313 (1966)

CONFLICTS OF INTERESTS - EMPLOYMENT- PRIVATE PRACTICE BY MEMBER OF TEXAS STATE HIGHWAY COMMISSION
A lawyer who is a member of the Texas Highway Commission may defend his former client in a suit filed by the state against the former client for conspiracy to violate the Motor Carrier Act.

Canon 6.

It is the unanimous opinion of the committee that the attorney would not violate any of the Canons of Ethics if he represented his former client in this suit. There is no apparent conflict of interests between his position as a member of the Texas State Highway Commission and as attorney for his client. (7-0.)

Tex. Comm. On Professional Ethics, Op. 232 (1959)