Can an assistant county attorney who handles the county's eminent-domain cases also privately represent property owners in condemnation cases the county is not part of?

Plain-English summary

An assistant county attorney handled all eminent-domain proceedings for his county and, with the knowledge and consent of the Commissioners Court, was also in private practice. The inquiry posed three variations: whether he could defend clients in condemnation proceedings brought by cities and other condemning authorities in the county where the county itself was not involved and he had no connection to or access to the condemning authority's files; whether he could represent clients against a condemning authority on a project shared jointly with the State; and whether he could represent clients in condemnation cases where the condemning authority was a different county.

The Committee concluded that, under the facts assumed in each question, there was no conflict of interest between the county and the attorney's other clients and therefore no violation of Canon 6. It added that the attorney should still observe Canon 6 by disclosing to his clients the circumstances of his relations to the parties and any interest in or connection with the controversy that might influence the client's choice of counsel, and by not divulging his clients' secrets or confidences. Whether he could maintain satisfactory relations with clients on opposite sides of the docket was a matter for his own judgment, not a question of ethics. The ruling was 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 Treat this page as historical context, not current guidance.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 part-time county attorney take private condemnation cases?

A: On the assumed facts, yes. The Committee found no Canon 6 conflict where the county was not involved in the private case and the attorney had no connection to or access to the condemning authority's files.

Q: What conditions did the Committee attach?

A: The attorney should disclose to his clients his relationships to the parties and any interest or connection that might influence their choice of counsel, and he must not divulge his clients' secrets or confidences.

Q: What about representing clients against a different county or a State joint project?

A: The Committee treated all three variations the same: on the facts assumed, no conflict existed between the county and the attorney's other clients, so there was no Canon 6 violation.

Background and rules framework

The opinion interprets former Texas Canon 6, which addressed representing conflicting interests and required disclosure of a lawyer's connections to the parties. The modern analogs are ABA Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.11 (special conflicts for current 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 (current and former government officers and employees), as the modern analog
• Texas Canon 6 (former canon)

See also

• TX Ethics Op. 307: District Attorney's Firm Representing the Surety in the County's Bond Suit
• TX Ethics Op. 312: Prosecuting Attorney Representing a Policeman in an Overtime Suit
• TX Ethics Op. 318: County Attorney's Firm, Criminal Defense, and a "Civil Counsel" Letterhead

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-296/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_296.pdf

Original opinion text

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

QUESTION PRESENTED

First, where an Assistant County Attorney handles all proceedings in eminent domain for the county of his employment, and is at the same time, with the knowledge and consent of the Commissioners Court of said county, actively engaged in the private practice of law, would it be unethical for said attorney to defend clients in proceedings in eminent domain brought by cities and other condemning authorities located and doing business in said county, but in which cases the county is in no way involved, and said attorney has no connection with said condemning authorities nor does he have any access to their files or confidential information?
Secondly, would it be unethical for said attorney to represent clients against a city or other condemning authority in a condemnation case where the authority is participating said project jointly with the State Thirdly, would it be unethical for said attorney to represent clients in condemnation cases where the condemning authority is a county other than the one which employs said attorney?

18 Baylor L. Rev. 363 (1966)

CONFLICT OF INTERESTS - COUNTY ATTORNEY - EMINENT DOMAIN
An Assistant County Attorney, with the express consent of all concerned given after a full disclosure of the facts, may represent property owners in eminent domain proceedings in which the county is in no way involved.

Under the facts assumed in each of the three questions, it appears that there is no conflict of interest between the county and the attorney's other clients and therefore no violation of Canon 6. However, the attorney should observe the requirements of Canon 6 by disclosing to his clients all the circumstances of his relations to the parties, and any interest in, or connection with the controversy which might influence the client in the selection of counsel, and by not divulging his clients' secrets or confidences. Whether the attorney can maintain satisfactory relations with clients on opposite sides of the docket is a matter for his own good judgment and not a question of ethics. (9-0.)

Tex. Comm. On Professional Ethics, Op. 296 (1964)