Can a prosecuting attorney represent a city policeman in a civil overtime-wage suit when the same facts might require a criminal prosecution?

Plain-English summary

The inquiry concerned Articles 1583 and 1583-1 of the Penal Code, which set minimum working hours for policemen in certain cities, required overtime pay, and made the city official in charge of the police department who violated the Act subject to a daily fine. The question was whether a prosecuting attorney could ethically represent a city policeman in a civil action against the City for overtime wages under those Articles.

The Committee held that, assuming the prosecuting attorney's duty might require him to investigate or prosecute a criminal action under those statutes, his representation of the police officer in the civil overtime-wage action would involve a conflict of interests in violation of Canon 6, citing Opinions 109 and 143. The Committee added that it assumed the prosecuting attorney was not the City Attorney, who would have an obvious conflict regardless of any criminal action. The ruling was 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. 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 Treat this page as historical context, not current guidance.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 represent a policeman in a civil suit against the City for overtime wages?

A: The Committee said no, where the prosecutor's duty might require investigating or prosecuting a criminal action under the same statutes; that dual role is a conflict of interests under Canon 6.

Q: What made the two roles conflict?

A: The same statutes that supported the policeman's civil claim also imposed a criminal penalty on the responsible city official, so the prosecutor could be required to prosecute conduct connected to the matter he was advancing on the civil side.

Q: Did the answer assume anything about who the prosecutor was?

A: Yes. The Committee assumed the prosecuting attorney was not the City Attorney, who it said would have an obvious conflict regardless of any criminal action.

Background and rules framework

The opinion interprets former Texas Canon 6, which made it unethical to represent conflicting interests. The modern analogs are ABA Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.11 (special conflict-of-interest rules 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 (special conflicts for government officers and employees), as the modern analog
• Texas Canon 6 (former canon)

Statutes:

• Articles 1583 and 1583-1, Penal Code (minimum hours and overtime pay for policemen; penalty on the responsible city official)

Other opinions cited:

• Texas Opinions 109 (January, 1955) and 143 (March, 1957): conflicts of a public prosecutor

See also

• TX Ethics Op. 318: County Attorney's Firm Defending Criminal Cases and the "Civil Counsel" Letterhead
• TX Ethics Op. 332: A Public Prosecutor Representing a Civil Litigant in the Same Occurrence
• TX Ethics Op. 323: A County Attorney's Associates and Father Defending Criminal Cases

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-312/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_312.pdf

Original opinion text

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

QUESTION PRESENTED

Articles 1583 and 1583-1 of the Penal Code prescribe minimum working hours for policemen in cities of certain classes, require payment of overtime wages, and provide that the city official in charge of the police department who violates the Act shall be fined not less than $10 and not more than $100 for each day. Would it be unethical for a prosecuting attorney to represent a city policeman in a civil action against the City for overtime wages under these Articles?

23 Baylor L. Rev. 836 (1972)

Assuming that the prosecuting attorney's duty might require investigation or prosecution of a criminal action under these statutes, it is this committee's opinion that his representation of the police officer in the civil action for overtime wages would involve a conflict of interests in violation of Canon 6. See Opinions 109 (January, 1955) and 143 (March, 1957).

(We assume that the "prosecuting" attorney is not the City Attorney, who would have an obvious conflict regardless of the criminal action.) (9-0.)

CONFLICT OF INTEREST - PROSECUTING ATTORNEY REPRESENTING POLICEMAN IN CIVIL SUIT
It is unethical for a prosecuting attorney to represent a police officer in a civil action for overtime wages when his duty might require investigation or prosecution of a criminal action arising out of the same facts.

Canon 6.

Tex. Comm. On Professional Ethics, Op. 312 (1966)