Can a former assistant county attorney, and his law partner, defend a person the lawyer had handled as a prosecutor while in office?

Plain-English summary

A, while an assistant county attorney, handled a case concerning D, a juvenile charged with rape. A then resigned, formed a partnership with B, and gave B all the information in the State's case against D. Shortly after, D turned 17, was indicted for statutory rape, and A and B made D's bond and intended to represent him at trial. The inquiry asked whether A and B's representation would violate the Canons.

The Committee said it would violate Canon 33 for A to represent D under those circumstances, and that A's representation would also violate Article 32 of the Texas Code of Criminal Procedure. It held that B, A's partner, would be disqualified from representing D as well, citing among other rulings Opinion 104, which sets out that one member of a firm may not accept employment that previous relations prevent another member from accepting. The ruling was 9-0.

Currency note

This opinion was issued in 1961, 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 Treat this page as historical context, not current guidance.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 former prosecutor defend someone whose case he handled in office?

A: Under this opinion, no. The Committee said it would violate Canon 33 for the former assistant county attorney to represent the defendant whose case he had handled, and that it would also violate Article 32 of the Texas Code of Criminal Procedure.

Q: Is the former prosecutor's law partner also disqualified?

A: Yes. The Committee said the partner would be disqualified, citing Opinion 104 for the rule that one member of a firm may not accept employment that previous relations prevent another member from accepting.

Q: Did sharing the State's case file with the partner matter?

A: The facts noted that the former prosecutor advised his partner of all the information in the State's case against the defendant; the Committee disqualified both the former prosecutor and his partner from the representation.

Background and rules framework

The opinion interprets former Texas Canons 6 and 33, on conflicting interests and a lawyer's change from public to private employment, along with Article 32 of the Texas Code of Criminal Procedure. The modern analogs are ABA Model Rule 1.11, on successive government and private employment, and Model Rule 1.10, on imputation of conflicts within a firm.

Citations and references

Rules of Professional Conduct:

• MR 1.11 (successive government and private employment), as the modern analog
• MR 1.10 (imputation of conflicts), as the modern analog
• Texas Canons 6 and 33 (former canons)

Statutes:

• Tex. Code Crim. Proc. art. 32 (cited by the opinion)

Other opinions cited:

• Texas Opinion 104: one firm member may not accept employment another member is barred from

See also

• TX Ethics Op. 307: DA Firm vs. County Bond Suit
• TX Ethics Op. 296: County Lawyer in Condemnation
• TX Ethics Op. 259: Office-Sharing Lawyers' Imputed Conflict

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-243/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_243.pdf

Original opinion text

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

QUESTION PRESENTED

A, serving as an Assistant County Attorney, handled a case concerning D, a juvenile charged with rape. Subsequently, A resigned as Assistant County Attorney and formed a partnership with B. A advised B of all the information contained in the State's case against D. Shortly thereafter, D became 17 years of age and was indicted for statutory rape, and A and B made D's bond and intend to represent D during his trial. Would such action on the part of A and B be a violation of the Canons of Ethics?

18 Baylor L. Rev. 321 (1966)

CONFLICTING INTEREST - RETIREMENT FROM PUBLIC EMPLOYMENT
No member of a law firm may represent a defendant, indicted on a criminal charge, if one of such firm's members, while previously serving as an Assistant County Attorney, had handled or worked on the case concerning said defendant.

Canons 6, 33.

It is the opinion of the committee that it would be a violation of Canon 33 for A, under the circumstances stated, to represent D. Such representation by A would also violate Article 32 of the Texas Code of Criminal Procedure.

B, A's partner, would be disqualified from representing D under, among other rulings, Opinion 104 which clearly sets out that one member of a firm may not accept employment which previous relations prevent another member from accepting. (9-0.)

Tex. Comm. On Professional Ethics, Op. 243 (1961)