If a law firm partner is the city's mayor, can other members of the firm represent clients before the city's corporation court whose judge the city commission appoints and can remove at will?

Plain-English summary

B, a member of the law firm of B, C, D & E, was elected Mayor of a Texas city. All firm members refrained from representing clients before the City Commission and the city's appointive boards. The corporation court's judge was appointed by the City Commission and removable at will. The question was whether any member of the firm could ethically represent clients before that corporation court, assuming no City Charter provision or other law barred the representation so that the question turned on the Texas Canons.

The Committee held that no member could. It explained that disqualification of B would disqualify every member of the firm, so the determinative question was whether a lawyer who is mayor and a member of the city commission may represent clients before a corporation court judge appointed by and removable at the will of the commission. Canon 6 makes it unprofessional to represent conflicting interests, and the Committee read a line of Texas opinions to hold, in substance, that a lawyer who is a public official is disqualified under Canon 6 from representing a client in any matter over which the lawyer, as a public official, has discretion, potential duty, jurisdiction, or control. Citing examples such as Opinions 65, 82, 162, 183, and 197 and comparing Opinion 232, and noting that Opinions 23 and 108 may carry the trend further, the Committee said the Texas position, though strict, is in line with other authorities, citing Drinker. It concluded that precedent required the answer that no member of the firm may represent clients before the corporation court. The Committee ruled 9-0.

Currency note

This opinion was issued in 1963, 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 Treat this page as historical context, not current guidance.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 mayor's law partners appear in the city's corporation court?

A: Under this opinion, no. The Committee held that the mayor's disqualification extends to every member of the firm where the court's judge is appointed by and removable at the will of the city commission.

Q: Why is the whole firm disqualified, not just the mayor?

A: The Committee said disqualification of the mayor would mean every member of his firm is disqualified, citing a line of Texas opinions to that effect.

Q: What is the test for a public-official lawyer's conflict?

A: The Committee read Canon 6 to disqualify a lawyer who is a public official from representing a client in any matter as to which the lawyer, as a public official, has discretion, potential duty, jurisdiction, or control.

Background and rules framework

The opinion interprets former Texas Canon 6, on representing conflicting interests, as applied to a lawyer holding municipal office and to his firm. The modern analogs are ABA Model Rule 1.7, on concurrent conflicts of interest, and Model Rule 1.10, on imputation of conflicts within a firm.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest), as the modern analog
• MR 1.10 (imputation of conflicts of interest), as the modern analog
• Texas Canon 6 (former canon)

Other opinions cited:

• Texas Opinions 23, 59, 65, 82, 104, 108, 132, 162, 183, 197, and compare 232: public-official lawyers disqualified under Canon 6 and imputation to the firm

Other authorities:

• Henry S. Drinker, Legal Ethics 118-119, on the strictness of disqualification for public-official lawyers

See also

• TX Ethics Op. 274: Lawyer on a City Zoning Board of Adjustment Before Other City Bodies
• TX Ethics Op. 296: Assistant County Attorney's Private Eminent-Domain Practice
• TX Ethics Op. 281: Delinquent-Tax Attorney Representing a Defendant in His Own Tax Suit

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-272/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_272.pdf

Original opinion text

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

QUESTION PRESENTED

B, member of the law firm of B, C, D & E, was elected Mayor of a Texas city. All members of the firm refrain from representing clients before the City Commission and before all appointive boards of the city. The judge of the corporation court is appointed by the City Commission and can be removed at will. Is it ethical for any member of the firm of B, C, D, & E to represent clients before the corporation court?

18 Baylor L. Rev. 345 (1966)

CONFLICTING INTERESTS - PARTNERS OF CITY'S MAYOR
No member of a law firm, of which the Mayor of a city is a member, may represent clients before the city's corporation court, the judge of which ill appointed by and removable at the will of the City Commission.

Canon 6.

It is assumed, for the purposes of this opinion, that no provisions of the City Charter or other law would prohibit this representation, and that the question turns upon the Texas Canons of Ethics.

Disqualification of B would mean that every member of the law firm B C, D & E is disqualified, Opinions 23, 59, 65, 104, 132 and 197. The determinative question, therefore, is whether a lawyer, the Mayor of a city and a member of its commission, may represent clients before a corporation court judge who was appointed by and is removable at the will of the City Commission.

Canon 6 states it is unprofessional to represent conflicting interests. Several Texas opinions appear to hold, in substance, that a lawyer who is a public official is ethically disqualified under Canon 6 from representing a client in any matter as to which the lawyer has, as a public official, any discretion, potential duty jurisdiction or control. See, e.g., Opinions 65 (city attorney's partner cannot represent a utility before the city council); 82 (city alderman may not defend criminal cases in the city court); 162 (legislator who secures passage of resolution permitting X to sue state for damages may not represent X in the suit against the state); 183 (District Attorney, County Attorney and County Judge); (county attorney's partner may not defend criminal case in district court); and 197 (partner of member of city commission may not represent clients before the city commission); and compare Opinion 232. Some opinions, such as 23 and 108, possibly carry this trend toward disqualification even further. The Texas position, while strict, is in line with other authorities; see Drinker, Legal Ethics 118-119. Precedent requires the answer that it is not ethical for any member of the firm of B, C, D & E to represent clients before the corporation court. (9-0.)

Tex. Comm. On Professional Ethics, Op. 272 (1963)