Can a county attorney or other public prosecutor also represent a private civil litigant in a case arising from the same accident or occurrence?

Plain-English summary

The inquiry asked whether a County Attorney could prosecute a person for an offense arising out of an automobile accident and also represent one of the parties in a civil damage action arising from the same accident, and how the answer changed at various stages (an information filed in county court, or a complaint filed with the County Attorney by law enforcement). The Committee said the controlling principles apply to any public prosecutor, not only a County Attorney.

The Committee agreed in substance with ABA Opinion 135, which disqualifies a public prosecutor who has investigated an occurrence to determine criminal responsibility from acting as counsel for any party in a civil action based on that occurrence, but modified the blanket disqualification slightly. It reasoned that the prosecutor's client is the public body and his primary duty, under Canon 5, is not to convict but to see that justice is done; no outside interest should conflict with that duty. Representing a civil litigant in a matter arising from an occurrence under criminal investigation would likely create a conflict disqualifying the prosecutor under Canon 6, and the prosecutor's need to communicate with each party as witness or potential defendant raised a likely Canon 9 problem. The Committee reaffirmed Opinions 143 and 312 to the same effect.

The controlling principle it laid down: if a public prosecutor is employed, or contemplates being employed, to represent a party in a civil matter at any time when his prosecutorial duties require investigation or prosecution of a potential criminal charge against one of the parties to the same transaction, he is disqualified by an actual or potential conflict of interest. If, however, his prosecutorial duties were fully performed and terminated before he was approached about the civil representation, and he gained no confidential information through the public office, he would not be disqualified. The Committee added that a prosecutor representing civil litigants must avoid using his official office, facilities, and investigators in violation of Canons 24 and 25, and that the circumstances allowing such representation are extremely limited, so the prosecutor would be well advised to avoid even the appearance of impropriety. The vote was 9-0.

Currency note

This opinion was issued in 1967, 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 handle a civil case arising from an accident he is prosecuting?

A: The Committee said no. If his prosecutorial duties require investigating or prosecuting a potential criminal charge against one of the parties to the same transaction, he is disqualified by an actual or potential conflict of interest.

Q: Is there any situation where the prosecutor could take the civil case?

A: Yes, a narrow one. If his prosecutorial duties were fully performed and terminated before he was approached about the civil matter, and he gained no confidential information through the public office, the Committee said he would not be disqualified.

Q: What additional limits did the opinion place on a prosecutor's private practice?

A: The prosecutor must avoid using his official office, facilities, and investigators in his private civil work, in violation of Canons 24 and 25, and was advised to avoid even the appearance of impropriety.

Background and rules framework

The opinion interprets former Texas Canon 5 (the prosecutor's duty to see that justice is done), Canon 6 (conflicts of interest), Canon 9 (communications with parties), and Canons 24 and 25 (avoiding misuse of public office). The modern analogs are ABA Model Rule 1.7 (concurrent conflicts), Model Rule 1.11 (conflicts for current and former government officers), and Model Rule 3.8 (special responsibilities of a prosecutor).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest), as the modern analog
• MR 1.11 (special conflicts for government lawyers), as the modern analog
• MR 3.8 (special responsibilities of a prosecutor), as the modern analog
• Texas Canons 5, 6, 9, 24, and 25 (former canons)

Other opinions cited:

• ABA Opinion 135 (March 15, 1935) (prosecutor disqualified from a related civil action)
• Texas Opinions 143 (March 1937) and 312 (January 1966)
• Texas Opinions 48, 49, 172, 183, and 309 (misuse of public office)

See also

• TX Ethics Op. 367: Former Prosecutor Joining a Defense Firm
• TX Ethics Op. 345: Former Civil Assistant DA Defending Later-Indicted Cases
• TX Ethics Op. 365: Threatening Additional Prosecution to Discourage an Appeal

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-332/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_332.pdf

Original opinion text

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

QUESTION PRESENTED

The specific quotations prompting this Opinion are as follows:
May a County Attorney represent the State in prosecuting a person for an offense arising out of an automobile accident and also represent one of the parties in a civil action for damages arising out of the same accident?
If an information is filed in the County Court, may the County Attorney represent any party in a civil action arising out of the accident giving rise to the information?
If a complaint is filed with the County Attorney by law enforcement officers, may the County Attorney represent any party in a civil action arising out of the accident giving rise to the complaint?

23 Baylor L. Rev. 863 (1972)

CONFLICTING INTERESTS - PUBLIC PROSECUTOR REPRESENTING CIVIL SUITORS
It is improper for a public prosecutor (District Attorney, County Attorney or City Attorney) to represent any party in a civil matter arising out of an occurrence which also is the subject of criminal investigation or prosecution within the jurisdiction of such public prosecutor except in rare instances where his duties as prosecutor have been fully performed before actual or contemplated connection untie the civil matter and where also no advantage has been obtained through the public office.

Canons 5, 6, 9, 24, 25.

While the above questions concern particularly a County Attorney, the controlling principles hereinafter stated apply as well to any other public prosecutor.

American Bar Association Opinion No. 135 (March 15, 1935) holds that when a public prosecutor has investigated an occurrence for the purpose of determining criminal responsibility he is disqualified to act as counsel for any party in a civil action based on that occurrence. Basically, we agree with the principles stated in that opinion, but we modify slightly its blanket disqualification.

The client of a prosecuting attorney is the public body and his primary duty is to the public. That duty requires him to investigate complaints within his jurisdiction and to proceed in accordance with the interests of justice. Canon 5 provides in part that "It should be the primary duty of a member engaged in public prosecution not to convict, but to see that justice is done." Obviously no outside interest should be permitted to conflict with or interfere with the performance of those duties and it seems apparent that if a public prosecutor undertakes the representation of a civil litigant in a case arising out of an occurrence which is also the subject of a criminal investigation there would likely be a conflict of interest which, under Canon 6, would disqualify the public prosecutor from representing the civil litigant. It seems further apparent that the public prosecutor's handling of the criminal matter would in all probability require him to communicate with each party to the occurrence, either as a witness or as an actual or potential defendant, and if the prosecuting attorney is at the same time representing, or if he proposes to represent, one of the parties to the transaction, there is likely to be a violation of Canon 9.

In Opinion 143 (March, 1937), this Committee held that a prosecuting attorney may not ethically prosecute a defendant on a criminal charge growing out of an accident and at the same time represent the plaintiff in a civil damage suit against the same defendant arising out of the same occurrence. In Opinion 312 (January, 1966), we further held that it is unethical for a prosecuting attorney to represent a civil litigant when his duty might require investigation or prosecution of a criminal action arising out of the same facts. We reaffirm those opinions.

The controlling principle which we here lay down is that if a public prosecutor is in fact employed or contemplates being employed to represent one of the parties in a civil matter at any time when his duties as public prosecutor require investigation of a potential criminal charge or prosecution of a criminal charge against one of the parties to the transaction which is or will be involved in the civil matter, he is disqualified by reason of an actual or potential conflict of interest. If, however, his duties as public prosecutor have been fully performed and terminated at the time he is approached with respect to civil representation and if he has gained no confidential information by reason of his public office, he would not be ethically disqualified to represent one of the parties in the civil matter.

In representing civil litigants, a public prosecutor must also carefully avoid the use of his official office and its facilities, investigators, etc., in violation of Canons 24 and 25. For guiding principles in this connection see Opinion 48 (February, 1952), Opinion 49 (March, 1952), Opinion 172 (March, 1958), Opinion 183 (October, 1958) and Opinion 309 (January, 1966).

It is clear that the circumstances under which a public prosecutor can represent civil litigants in matters with which his office has any official connection are extremely limited and he would be well advised to avoid even the appearance of impropriety. (9-0.)

Tex. Comm. On Professional Ethics, Op. 332 (1967)