Can a former civil-section assistant DA defend people indicted after he left, for offenses committed while he worked there, if he never touched the criminal side?

Plain-English summary

An attorney worked in the civil section of a district attorney's office, never participating in criminal matters, with no access to criminal files and no information about any criminal matter. After he left, indictments were returned against persons for offenses allegedly committed while he was on the staff. The Committee was asked whether he is ethically disqualified, by appointment or private employment, from representing those defendants.

The Committee began with Article 2.08 of the Code of Criminal Procedure (district and county attorneys may not be of counsel adversely to the State, including after leaving office, in a case in which they were of counsel for the State), Texas Canon 6 and ABA Canon 6 (conflicting interests, absent consent after full disclosure), and Texas Canon 33 and ABA Canon 36 (a former public lawyer not accepting employment in a matter he investigated or passed upon while in office). It noted that the attorney would clearly be disqualified if he had participated in the cases or gained information while in the office, citing Texas Opinion 243 and ABA Opinion 134, the latter going further to bar subsequent employment in any case that arose during his service, whether or not he participated, on an appearance-of-impropriety basis.

Two members would have followed ABA Opinion 134 fully. The majority found ABA Opinion 134 too restrictive and concluded that where the attorney did not in fact participate in criminal matters, had no access to criminal files, and gained no information about the pending cases while serving as a civil assistant, there is no disqualification under the statute or the Canons. One member observed that ABA Opinion 134's broad rule would prove unworkable in small counties with few lawyers and that each case should be judged on its circumstances, a suggestion the majority approved. The Committee added that in any event the attorney should make full disclosure to his proposed client and the district attorney, and if either objects he would be well advised to disqualify even absent an ethical bar. The vote was 6-2.

Currency note

This opinion was issued in 1968, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Successive conflicts involving former government lawyers are now governed by Texas Rule 1.10 and ABA Model Rule 1.11, which turn on the lawyer's personal and substantial participation in the matter and provide for screening. 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: May a former civil assistant DA defend cases indicted after he left?

A: The majority concluded he may, provided he did not participate in the cases in any way and gained no information about them while on the staff.

Q: Did the Committee follow ABA Opinion 134's broader rule?

A: No. The majority found ABA Opinion 134, which would bar any case that arose during the lawyer's service on an appearance-of-impropriety basis, too restrictive; two members would have followed it.

Q: Should the lawyer disclose the prior employment anyway?

A: Yes. The Committee said he should make full disclosure to his proposed client and the district attorney, and if either objects he would be well advised to disqualify even without an ethical bar.

Q: Was the Committee unanimous?

A: No. The vote was 6-2.

Background and rules framework

The opinion interprets former Texas Canon 6 (conflicting interests) and Canon 33 (a former public lawyer's later employment), alongside Article 2.08 of the Code of Criminal Procedure and ABA Canons 6 and 36. The modern analog is Texas Rule 1.10 and ABA Model Rule 1.11 (former government officers and employees).

Citations and references

Rules of Professional Conduct:

• MR 1.11 (special conflicts for former government officers and employees), as the modern analog
• Texas Canons 6 and 33; ABA Canons 6 and 36 (former canons)

Statutes:

• Tex. Code Crim. Proc. art. 2.08 (district and county attorneys not of counsel adversely to the State)

Other opinions cited:

• Texas Ethics Opinion 243; ABA Opinion 134 (the broader appearance-of-impropriety rule, found too restrictive)

See also

• TX Ethics Op. 367: Continuing to Represent a Client After a Former Assistant DA Joins the Firm
• TX Ethics Op. 538: Newly Elected DA Prosecuting a Former Client
• TX Ethics Op. 615: District Attorney Prosecuting a Former Client Official

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-345/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_345.pdf

Original opinion text

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

QUESTION PRESENTED

An attorney was employed in the Civil Section of a District Attorney's office. He did not participate in criminal matters in any way, had no access to criminal files, and obtained no information concerning any criminal matter. He terminated his employment with the District Attorney's office and after such termination indictments were returned against persons for offenses allegedly committed during the time that the attorney was on the District Attorney's staff.
Is such attorney ethically disqualified from representing such defendants either by appointment or by private employment ?

23 Baylor L. Rev. 884 (1972)

REPRESENTATION OF DEFENDANT IN CRIMINAL CASE BY FORMER CIVIL ASSISTANT DISTRICT ATTORNEY - CONFLICT OF INTEREST - RETIREMENT FROM PUBLIC EMPLOYMENT
A former civil assistant in a District Attorney's Office may ethically represent a defendant in a criminal case where the indictment was returned after his separation from the office even though the offense allegedly occurred while he was in the office, provided he did not participate in the case in any way and did not obtain any information with respect thereto while on the District Attorney's staff.

Article 2.08, Code of Criminal Procedure.
Canons 6, 33.
ABA Canons 6, 36.

An attorney was employed in the Civil Section of a District Attorney's office. He did not participate in criminal matters in any way, had no access to criminal files, and obtained no information concerning any criminal matter. He terminated his employment with the District Attorney's office and after such termination indictments were returned against persons for offenses allegedly committed during the time that the attorney was on the District Attorney's staff.

Article 2.08 of the Texas Code of Criminal Procedure provides as follows:

"District and County Attorneys shall not be of counsel adversely to the State in any case, in any court, nor shall they, after they cease to be such officers, be of counsel adversely to the State in any case in which they have been of counsel for the State."

Texas Canon 6 and ABA Canon 6, of course, prohibit the representation of conflicting interest, except with the consent of all concerned after full disclosure. Texas Canon 33 further provides in part, as follows:

"A member, having once held public office or having been in the public employ, shall not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ, adverse to the interest previously represented by him while in such office or public employ...."

ABA Canon 36 is substantially the same but is somewhat more restrictive. It provides in part as follows:

"A lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ."

Under the statute and the Canons it is clear that the attorney would be disqualified to represent the criminal defendants if he had participated in any way in the cases or had gained any information about the cases while in the District Attorney's office. Texas Opinion 243 and ABA Opinion 134. The latter opinion further holds that an attorney is disqualified to accept subsequent employment in any case which arose while he was on the District Attorney's staff, whether or not he participated therein or gained any information with respect thereto, the basis of the disqualification being an appearance of impropriety insofar as the public is concerned.

Two members of our Committee would follow ABA Opinion 134 in all respects, although one of such members does not fully agree with the reasoning of that opinion. The majority of our Committee, however, feels that ABA Opinion 134 is too restrictive and that if the attorney did not in fact participate in criminal matters, had no access to criminal files, and gained no information with respect to the pending cases while on the District Attorney's staff as a civil assistant, there is no disqualification either under the statute or the Canons.

One member suggests that the broad prohibition of ABA Opinion 134 is likely to prove unworkable in small counties where there is a paucity of lawyers and that while broad guidelines are desirable, each case should be judged upon its particular circumstances. The majority of the Committee approves this suggestion and does not find in the present circumstances any ethical disqualification.

In any event, the attorney should make a full disclosure both to his proposed client and the District Attorney and if there is objection from either he would be well advised to disqualify even though there is no ethical disqualification. (6-2.)

Tex. Comm. On Professional Ethics, Op. 345 (1968)