Can a district attorney's law firm represent the surety in a county's civil suit over a misappropriation the DA first presented to a grand jury?

Plain-English summary

A district attorney received information from a county attorney in his district about the misappropriation of county property and presented the matter to a grand jury. No indictment was returned. The county attorney then filed a civil suit on the county's behalf against the official and the surety on his fidelity bond, alleging the same misappropriation. The question was whether the law firm of which the district attorney is a member could represent the surety in that civil suit.

The Committee concluded that such representation would violate Canon 6, which makes it unethical to represent conflicting interests. The district attorney had already acted for the State in presenting the misappropriation facts to the grand jury, and his firm's defense of the surety against the county's claim over the same misappropriation would place it on the opposing side of that matter. The Committee cited Opinions 94, 109, 113, 143, and 183 and ruled 9-0.

Currency note

This opinion was issued in 1965, 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 Treat this page as historical context, not current guidance.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 prosecutor's firm defend the surety in a civil suit growing out of a matter the prosecutor took to a grand jury?

A: No. The Committee said that where a district attorney presented the misappropriation facts to a grand jury, his firm's representation of the bonding company in the county's later civil suit on the same misappropriation would violate Canon 6.

Q: Does it matter that the grand jury returned no indictment?

A: The Committee did not treat the absence of an indictment as curing the conflict; it concluded the firm still could not represent the surety against the county on the same misappropriation the district attorney had presented.

Q: Is the disqualification limited to the district attorney himself?

A: No. The Committee framed the bar as reaching the law firm of which the district attorney is a member, not just the individual prosecutor.

Background and rules framework

The opinion interprets former Texas Canon 6 (representing conflicting interests). 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), which addresses a lawyer's move between government work and private representation in the same matter.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest), as the modern analog
• MR 1.11 (former government officer or employee), as the modern analog
• Texas Canon 6 (former canon)

Other opinions cited:

• Texas Opinions 94, 109, 113, 143, and 183: prior conflicting-interest rulings the Committee relied on

See also

• 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
• TX Ethics Op. 309: County Attorney Soliciting Private Work and Taking Referral Fees

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-307/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_307.pdf

Original opinion text

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

QUESTION PRESENTED

Suppose that a District Attorney receives from a County Attorney (of a county in his district) information pertaining to misappropriation of county property, for use in presenting the matter to a grand jury, and that later, no indictment being returned, the County Attorney files a civil suit on behalf of the county against a county official and the surety on his fidelity bond, alleging such misappropriation. Would it be unethical for the law firm of which the District Attorney is a member to represent the surety in such civil suit?

23 Baylor L. Rev. 827 (1972)

Yes, such representation would violate Canon 6. See Opinions 94, 109, 113, 143 and 183. (9-0.)

CONFLICTING INTERESTS - DISTRICT ATTORNEY - COUNTY'S SUIT ON FIDELITY BOND
A District Attorney (or his law firm) may not ethically represent the bonding company defendant in a civil suit filed by a county situated in his district for misappropriation by a county official after presentation by the District Attorney of the facts to a grand jury.

Canon 6.

Tex. Comm. On Professional Ethics, Op. 307 (1965)