Can a criminal district attorney prosecute a case against his own relative?

Plain-English summary

The inquiry asked whether a duly elected criminal district attorney should conduct the prosecution of a relative charged with an offense.

The committee was unanimous that prosecuting a relative would violate the spirit, if not the letter, of Canon 6 of both the State Bar of Texas and the American Bar Association, which requires a lawyer to avoid adverse influences and conflicting interests. The committee adopted one member's observation that if the defendant were acquitted, or if the district attorney decided after presenting evidence that the case should be dismissed to serve substantial justice, he could never explain such action to the prosecuting witnesses, who would believe he acted because of the family relationship. The committee concluded that the district attorney should recuse himself and that an unrelated prosecutor should handle the case. The vote was 10-0.

Currency note

This opinion was issued in 1950, 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; conflicts of interest and the special conflicts of current government officers are now addressed by ABA Model Rules 1.7 and 1.11. Treat this page as historical context, not current guidance.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 handle a case against a family member?

A: Under this opinion, no. The committee held (10-0) that a criminal district attorney may not prosecute a relative and should recuse.

Q: Why did the committee see a conflict even though the DA represents the State?

A: The committee reasoned that any favorable exercise of prosecutorial discretion, such as accepting an acquittal or dismissing for substantial justice, could never be credibly explained to the prosecuting witnesses, who would attribute it to the family relationship.

Q: What should happen to the case instead?

A: The committee concluded that the district attorney should recuse himself and that the prosecution should be conducted by someone not related to the defendant.

Background and rules framework

The opinion interprets former Texas Canon 6 and ABA Canon 6 (adverse influences and conflicting interests), applied to a prosecutor's relationship with a criminal defendant. The modern analogs are ABA Model Rule 1.7 (conflicts of interest) and Model Rule 1.11 (special conflicts for current government officers and employees).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest), as the modern analog
• MR 1.11 (current government officers), as the modern analog
• Texas Canon 6 and ABA Canon 6 (adverse influences and conflicting interests)

See also

• TX Ethics Op. 37: A County Attorney's Partner Practicing Criminal Law
• TX Ethics Op. 49: City Attorney Practicing Criminal Law Elsewhere
• TX Ethics Op. 48: County Attorney in Private Civil Practice

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-32/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_32.pdf

Original opinion text

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

QUESTION PRESENTED

Should the duly-elected criminal district attorney conduct the prosecution of a relative who is charged with the commission of an offense?

18 Baylor L. Rev. 210 (1966)

CONFLICTING INTERESTS - CRIMINAL DISTRICT ATTORNEYS - PROSECUTION OF RELATIVES
A criminal district attorney may not prosecute a relative. Canon 6.

It is the unanimous opinion of the committee that the prosecution of a relative by the duly- elected criminal district attorney would violate the spirit, if not the letter, of Canon 6 of both the State Bar of Texas and the American Bar Association. Canon 6 requires a lawyer to avoid adverse influences and conflicting interests, and, as one member of the committee has very ably expressed it: "It is quite obvious that if the defendant should be acquitted, or if the district attorney should feel after putting on his evidence that the case should be dismissed in order to bring about substantial justice, he would never be able to explain such action to the prosecuting witness or witnesses, and they would always believe that he took such action because of his relationship to the defendant."

The committee feels that the district attorney should recuse himself and the case should be prosecuted by someone who is not related to the defendant. (10-0)

Tex. Comm. On Professional Ethics, Op. 32 (1950)