Can a county attorney's law partner, associate, or father defend criminal cases, and does court appointment versus private hire change the answer?

Plain-English summary

The inquiry described a sparsely populated judicial district where providing counsel for criminal defendants was acute. In County X the only attorney was also the County Attorney; in County Y the County Attorney practiced civil law with his father; in County Z the County Attorney had a civil-practice partner. The questions were whether attorneys other than the County Attorneys could defend criminal cases, and whether it mattered if the representation was by private employment or court appointment.

The Committee noted that County Attorneys are barred by Article 2.08 of the Texas Code of Criminal Procedure from acting as counsel adversely to the State in any court, and that it had consistently ruled the County Attorney's partners and associates are likewise disqualified under Canon 6, even where the partnership or association is for civil practice only. That imputed disqualification reaches all courts throughout the state.

On the County Attorney's father, the Committee said the question of a father not associated with his son in practice was not squarely before it, but, as it was obliquely presented, the Committee commented that while no statute or canon expressly creates a disqualification, such representation is pregnant with the appearance of impropriety and should be discouraged. The Committee held the disqualifications are the same whether representation results from private employment or court appointment, and added that the acute need for counsel in sparsely settled counties does not justify departing from sound principles of professional ethics. The votes were 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. 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 Treat this page as historical context, not current guidance.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's law partner defend a criminal case?

A: No. The Committee said the County Attorney's partners and associates are disqualified under Canon 6 in all courts statewide, even where their practice together is civil only.

Q: Can the county attorney's father defend a case his son prosecutes?

A: The Committee said a father not associated with his son in practice is not per se disqualified, but such representation is pregnant with the appearance of impropriety and should be discouraged.

Q: Does court appointment instead of private hire change the result?

A: No. The Committee held the disqualifications are the same whether the representation results from private employment or court appointment.

Background and rules framework

The opinion interprets former Texas Canon 6 (conflicts of interest), applying the County Attorney's statutory disqualification to his firm. The modern analogs are ABA Model Rule 1.7 (concurrent conflicts), Model Rule 1.10 (imputation of conflicts within a firm), and Model Rule 1.11 (conflicts for government officers).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest), as the modern analog
• MR 1.10 (imputation of conflicts of interest), as the modern analog
• MR 1.11 (special conflicts for government officers), as the modern analog
• Texas Canon 6 (former canon)

Statutes:

• Tex. Code Crim. Proc. art. 2.08 (County Attorney not to act adversely to the State)

Other opinions cited:

• Texas Opinions 23, 37, 183, 187, and 318 (partners and associates); Opinions 35 and 135 (father not expressly disqualified)

See also

• TX Ethics Op. 327: Probation Officer Acting as Defense Counsel
• TX Ethics Op. 332: Public Prosecutor Representing a Civil Litigant in a Related Matter
• TX Ethics Op. 345: Former Civil Assistant DA Defending Later-Indicted Cases

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-323/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_323.pdf

Original opinion text

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

QUESTION PRESENTED

A judicial district composed of several sparsely populated counties has only a few lawyers and the problem of providing counsel for defendants in criminal cases is acute. In County X there is only one attorney A, who is also the County Attorney. In County Y there are two attorneys, the County Attorney B and his father C, who is associated with him in the practice of civil law. In County Z there are two attorneys, the County Attorney D and his partner in civil practice E.

Two questions are presented:
May any of the attorneys other than the County Attorneys act as counsel in the defense of criminal cases.
Does it make any difference whether the representation is by private employment or by court appointment?

23 Baylor L. Rev. 851 (1972)

CONFLICT OF INTEREST - CRIMINAL PRACTICE BY ATTORNEY ASSOCIATED WITH COUNTY ATTORNEY IN CIVIL PRACTICE - CRIMINAL PRACTICE BY FATHER OF COUNTY ATTORNEY - PRIVATE EMPLOYMENT OR COURT APPOINTMENT
A County Attorney's disqualification to defend criminal cases extends to his partners or associates in all courts throughout the state whether privately employed or court-appointed. The father of a County Attorney is not per se disqualified to defend a criminal case prosecuted by his son but such practice should be discouraged.

Canon 6.

County Attorneys are 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 and this Committee has consistently ruled that the County Attorney's partners and associates are likewise disqualified under Canon 6, even though the partnership or association is for the practice of civil law only. Opinions 23 (December, 1949), 37 (May, 1951), 183 (October, 1958), 187 (October, 1958), and 318 (October, 1966).

We do not have before us squarely the question of whether the father of a County Attorney, who is not associated with his son in practice in any way, would be disqualified from acting as defense counsel in a criminal case prosecuted by his son, but the question is obliquely presented and we consider it proper to comment thereon. While there is no statute or canon which expressly creates a disqualificationΧsee Opinions 35 (March, 1951) and 135 (September, 1956)Χsuch representation is pregnant with the appearance of impropriety and should be discouraged. (8-0.)

The foregoing disqualifications are the same whether representation results from private employment or court appointment. (8-0.)

We recognize that the problem of providing counsel in criminal cases in sparsely settled counties may be acute but that does not justify departure from established sound principles of professional ethics.

Tex. Comm. On Professional Ethics, Op. 323 (1966)