Can a county's delinquent-tax attorney also represent one of the defendant landowners in the same tax-foreclosure matter, even with everyone's consent after full disclosure?

Plain-English summary

L was a county's delinquent-tax attorney, filing suits that ended in tax sales. Y, one of several heirs owning undivided interests in a tract, wanted to hire L to negotiate with the other heirs so Y could buy them out and consolidate ownership. Everyone would understand that L would prosecute the tax suit to final judgment against Y and the remaining owners and hold a tax sale, and all parties would be told of the heirs' right of redemption and to any excess sale proceeds. The question was whether L was disqualified from representing Y.

The Committee read the arrangement as having L represent the county as plaintiff and Y as a defendant in the same matter. It concluded that, although Canon 6 lets a lawyer represent conflicting interests with the consent of all parties after full disclosure, the canon does not contemplate one attorney representing both a plaintiff and a defendant in or about a given lawsuit. Such representation would inevitably lead to difficulties, and the very appearance of one lawyer on both sides seemed improper. Quoting Drinker, the Committee said the canon forbids representation of conflicting interests except in cases where consent is given, not in every such case. The Committee ruled 9-0.

Currency note

This opinion was issued in 1964, 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 Treat this page as historical context, not current guidance.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 government tax attorney also represent a defendant in his own tax suit?

A: Under this opinion, no. The Committee said one lawyer cannot represent both the county plaintiff and a defendant landowner in or about the same foreclosure suit.

Q: Does everyone's consent cure the conflict?

A: No. The Committee held that Canon 6's consent provision does not extend to one attorney representing both a plaintiff and a defendant in the same lawsuit, so disclosure and consent did not make the dual role proper.

Q: What was the Committee's reasoning for the bright line?

A: It said the dual role would inevitably lead to difficulties and that the very appearance of one lawyer representing both a plaintiff's and a defendant's interests seemed improper, citing Drinker for the point that the canon forbids conflicting representation except where consent is given.

Background and rules framework

The opinion interprets former Texas Canon 6 on representing conflicting interests. The modern analog is ABA Model Rule 1.7, governing concurrent conflicts of interest, which separately treats representation of directly adverse parties and the limits of client consent.

Citations and references

Rules of Professional Conduct:

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

Other authorities:

• Henry S. Drinker, Legal Ethics (1953) 120, on consent not sanctioning conflicting representation in every case

See also

• TX Ethics Op. 299: Suing a Current Client Over the Same Collision
• TX Ethics Op. 296: Assistant County Attorney's Private Eminent-Domain Practice
• TX Ethics Op. 295: One Attorney for Two Taxing Agencies in a Tax Suit

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-281/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_281.pdf

Original opinion text

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

QUESTION PRESENTED

A county's delinquent tax attorney, L, is engaged in filing suits culminating in tax sales. Y, one of several heirs owning undivided interests in a tract of land, seeks to employ L for the purpose of negotiating with other heirs so that Y may purchase their interests and consolidate ownership. All parties would understand that L will prosecute the tax suit to final judgment against Y and any remaining owners and will hold a tax sale so as to collect the taxes. All parties will be informed of the heirs' right of redemption and to excess funds received at the tax sale. Is L disqualified to represent Y?

18 Baylor L. Rev. 352 (1966)

CONFLICTING INTERESTS - TAX FORECLOSURE - REPRESENTING ADVERSE PARTIES AFTER FULL DISCLOSURE
A delinquent tax attorney may not bring a tax suit against Y and others and represent Y in negotiations with other defendants.

Canon 6.

The committee is not sure it fully understands the procedure contemplated in the foreclosure, but apparently it is contemplated that L will be representing the county as plaintiff and Y who is a defendant. While Canon 6 authorizes an attorney to represent conflicting interests with consent of all parties after full disclosure, Canon 6 does not contemplate that an attorney can represent both a plaintiff and a defendant in or in regard to a given lawsuit. Such representation would inevitably lead to difficulties, and the very appearance of counsel representing the interests of a plaintiff and a defendant seems improper. "The Canon does not sanction representation of conflicting interests in every case where such consent is given, but merely forbids it except in such cases." Drinker, Legal Ethics (1953) 120. (9-0.)

Tex. Comm. On Professional Ethics, Op. 281 (1964)