When someone brings a matter to the county attorney's office that the office can't handle, can the county attorney offer to take it privately, refer it out, or accept a referral fee?

Plain-English summary

The inquiry asked, in several variations, what a county attorney (or an assistant) may do when a taxpayer brings the office a matter the office cannot handle, assuming the person came expecting official help rather than to retain anyone privately. The same questions were posed for a person who came to file a criminal complaint but was told a civil remedy would serve better.

The Committee answered that, assuming the person showed no intention or desire to employ the county attorney, the county attorney's offer to represent the person as a private lawyer would violate Canon 24, which prohibits solicitation. Simply referring the person to another practicing attorney, under the stated circumstances, would not violate the canons, but any special arrangement between the county attorney and the other attorney for referral of cases could violate Canon 25.

Accepting a referral fee from the lawyer to whom the matter was referred would violate Canon 31, which permits a division of fees only when based on a division of service or responsibility, citing Opinion 172; Canon 25 might also be violated. The Committee said the same answers apply to the criminal-complaint scenario. The rulings were each 9-0.

Currency note

This opinion was issued in 1966, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. It also predates Bates v. State Bar of Arizona, 433 U.S. 350 (1977), which loosened categorical advertising restrictions, though prohibitions on solicitation were not eliminated. 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 Treat this page as historical context, not current guidance.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 county attorney offer to handle privately a matter the office can't take?

A: Not where the person came expecting official help and showed no desire to employ him; the Committee held that offer would violate Canon 24's bar on solicitation.

Q: Can the county attorney just refer the person to a named private lawyer?

A: Yes. The Committee said a simple referral, under the circumstances stated, would not violate the canons, though a standing referral arrangement could violate Canon 25.

Q: Can the county attorney accept a referral fee from that lawyer?

A: No. The Committee held that would violate Canon 31, which permits dividing fees only on a division of service or responsibility, and might also violate Canon 25.

Background and rules framework

The opinion interprets former Texas Canon 24 (solicitation), Canon 25 (stirring up litigation and seeking out clients), and Canon 31 (division of fees only on a division of service or responsibility). The modern analogs are ABA Model Rule 7.3 (solicitation of clients), Model Rule 1.5(e) (division of fees between lawyers), and Model Rule 1.11 (special conflict rules for government officers).

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation of clients), as the modern analog
• MR 1.5(e) (division of fees between lawyers), as the modern analog
• MR 1.11 (special conflicts for government officers), as the modern analog
• Texas Canons 24, 25, and 31 (former canons)

Other opinions cited:

• Texas Opinion 172 (March, 1958): division of fees only on a division of service or responsibility

See also

• TX Ethics Op. 318: County Attorney's Firm Defending Criminal Cases and the "Civil Counsel" Letterhead
• TX Ethics Op. 312: Prosecuting Attorney Representing a Policeman in an Overtime-Wage Suit
• TX Ethics Op. 351: Bond-Premium Referral Fee From a Bonding Company

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-309/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_309.pdf

Original opinion text

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

QUESTION PRESENTED

If an individual were to go to the County Attorney's Office with a case that was not a matter which that office could handle, would it be a violation of the Canons of Ethics for the County Attorney, or one of his Assistants, to inform the individual that he could not represent him in his official capacity, but that he would undertake to represent him as a private lawyer?
Would it be a violation of the Canons of Ethics if, in that same situation, the County Attorney, or one of his Assistants, told the individual that the County Attorney's office could not represent him as such, and then gave him the name of a particular practicing attorney who would be able to help him?
In the latter situation, assuming it to be proper, would it be a violation of the Canons of Ethics for the County Attorney, or one of his Assistants, to accept a referral fee from the individual lawyer to whom he referred the man seeking help?

In each of these situations, we have assumed that the individual with the cause of action went to the County Attorney's office with the understanding that, as a taxpayer, the County Attorney's office was available for his use and that the County Attorney's office could properly handle the type of matter involved, and not to retain the individual in the County Attorney's office as a private lawyer.

Finally, would it be a violation of the Canons of Ethics if an individual went to the County Attorney's office seeking to file a criminal complaint but was informed that criminal action in the matter would be ineffective and that his civil remedies would better suit his needs, and then the County Attorney or one of his Assistants, either undertook to take the case, or referred it out to one specific lawyer with or without a referral fee, as in the above examples?

23 Baylor L. Rev. 829 (1972)

The above inquiries are answered as follows:
Assuming that the individual did not indicate any intention or desire to employ the County Attorney, his offer to represent the individual as a private lawyer would violate Canon 24, which prohibits solicitation. (9-0.)
No, under the circumstances stated, simply referring the individual to another practicing attorney would not violate the Canons. But any special arrangement between the County Attorney and the other attorney for referral of cases could involve a violation of Canon 25. (9-0.)
Yes, there would be a violation of Canon 31, which permits division of such fees only when based upon a division of service or responsibility. See Opinion 172 (March. 1958). Canon 25 might also be violated as stated above. (9-0.)
The above answers would also apply in the situation assumed in the fourth inquiry. (9-0.)

SOLICITATION - STIRRING UP LITIGATION - DIVISION OF FEES - COUNTY A TTORNEYS
When a County Attorney is consulted in his official capacity about a criminal or civil matter, it is unethical for him to offer his services as a private lawyer; he may ethically refer the complainant to another lawyer; but he cannot accept a referral fee.

Canons 24, 25, 31.

Tex. Comm. On Professional Ethics, Op. 309 (1966)