If a county attorney joins a private law firm, can the firm's other lawyers defend criminal cases, and can the firm list him as 'Civil Counsel' on the letterhead?

Plain-English summary

County Attorney X proposed to form a law partnership with Y and Z. Because he was prohibited from defending criminal cases, he proposed to handle only civil matters and to designate himself as "Civil Counsel" on the firm letterhead. The inquiry asked whether any member of the firm could ethically defend criminal cases and whether the firm could use the "Civil Counsel" designation.

On the first question, the Committee held that because County Attorney X is prohibited by Article 2.08 of the Texas Code of Criminal Procedure from acting as counsel adversely to the State in any case in any court, all members of the firm are likewise disqualified under Canon 6. The ruling was 8-0.

On the second question, the Committee held that the designation "Civil Counsel" is not authorized under Canon 39, and although it does not indicate any special expertise and is not self-laudatory, it is solicitous in nature and is therefore condemned under Canon 24. To the extent Opinions 52 and 77 were inconsistent, the Committee overruled them. That ruling was also 8-0.

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 misleading communications 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 Treat this page as historical context, not current guidance.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: If a county attorney joins a firm, can the firm's other lawyers defend criminal cases?

A: No. The Committee held that because the county attorney is statutorily barred from acting adversely to the State, all members of his firm are likewise disqualified under Canon 6.

Q: Can the firm list the county attorney as "Civil Counsel" on its letterhead?

A: No. The Committee held that "Civil Counsel" is not authorized under Canon 39 and, though not self-laudatory, is solicitous in nature and condemned under Canon 24.

Q: Did this opinion change any earlier rulings?

A: Yes. The Committee overruled Opinions 52 (May, 1952) and 77 (September, 1953) to the extent they were inconsistent with its conclusion on the letterhead designation.

Background and rules framework

The opinion interprets former Texas Canon 6 (representing a client with undivided fidelity and the disqualification that flows from a conflicting public duty), Canon 24 (advertising and solicitation), and Canon 39 (approved law lists), together with Article 2.08 of the Texas Code of Criminal Procedure. The modern analogs are ABA Model Rule 1.10 (imputation of conflicts within a firm), Model Rule 1.7 (concurrent conflicts of interest), and Model Rule 7.1 (communications concerning a lawyer's services).

Citations and references

Rules of Professional Conduct:

• MR 1.10 (imputation of conflicts), as the modern analog
• MR 1.7 (concurrent conflicts of interest), as the modern analog
• MR 7.1 (communications concerning a lawyer's services), as the modern analog
• Texas Canons 6, 24, and 39 (former canons)

Statutes:

• Article 2.08, Texas Code of Criminal Procedure (county attorney may not act as counsel adversely to the State)

Other opinions cited:

• Texas Opinions 23, 37, 132, 183, and 187: disqualification of a public prosecutor's firm
• Texas Opinions 198, 267, 291, and 302: letterhead designations under Canon 24
• Texas Opinions 52 and 77: overruled to the extent inconsistent

See also

• TX Ethics Op. 323: A County Attorney's Associates and Father Defending Criminal Cases
• TX Ethics Op. 332: A Public Prosecutor Representing a Civil Litigant in the Same Occurrence
• TX Ethics Op. 331: "Tax Attorney" Specialty Designation on a Letterhead

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-318/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_318.pdf

Original opinion text

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

QUESTION PRESENTED

County Attorney X proposes to form a partnership for the practice of law with Y and Z. Since he is prohibited from defending criminal cases he proposes to handle only civil matters and to designate himself as "Civil Counsel" on the firm's letterhead. Two questions of ethics are presented:
May any member of the firm ethically act as counsel in the defense of criminal cases?
May the firm ethically designate attorney X as "Civil Counsel" on its letterhead?

23 Baylor L. Rev. 844 (1972)

Since County Attorney X is prohibited by Article 2.08 of the Texas Code of Criminal Procedure from acting as counsel adversely to the State in any case in any Court all members of the firm are likewise disqualified under Canon 6. Opinions 23 (December, 1949), 37 (May, 1951), 132 (June, 1956), 183 (October, 1958), and 187 (October, 1958). (8-0.)

The designation "Civil Counsel" is not authorized under Canon 39 and while it does not indicate any special expertise and is not self-laudatory, it is solicitous in nature and is therefore condemned under Canon 24. See Opinions 198 (June, 1960), 267 (October, 1963), 291 (June, 1964), and 302 (August, 1965). To the extent that Opinions 52 (May, 1952) and 77 (September, 1953) are inconsistent herewith, they are overruled. (8-0.)

CONFLICT OF INTEREST - CRIMINAL PRACTICE BY LAW FIRM OF WHICH COUNTY ATTORNEY IS A MEMBER
County Attorney's disqualification to defend criminal cases also disqualifies all members of his law firm. Article 2.08 Texas Code of Criminal Procedure.

Canon 6.

SOLICITATION - LETTERHEAD
An attorney may not include the words "Civil Counsel" on his professional letterhead.

Canons 24, 39.

Tex. Comm. On Professional Ethics, Op. 318 (1966)