Can the law partner of a county attorney defend criminal cases in the district court of that same county?

Plain-English summary

The inquiry asked whether the law partner of a county attorney was precluded from practicing criminal law in the district court of the county where his partner served as county attorney, if he limited his criminal practice to cases in which the county attorney took no active part in preparing and prosecuting the State's case.

The committee viewed this as substantially the same question it had answered in Opinion 23, released in December 1949, and concluded that such conduct would be unethical under Canon 6. The vote was 7-3.

Currency note

This opinion was issued in 1951, 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 arising from a partner's public prosecutorial office, and their imputation to the firm, are now addressed by ABA Model Rules 1.7 and 1.10. Treat this page as historical context, not current guidance.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: Could the partner avoid the problem by taking only cases the county attorney did not personally handle?

A: No. The committee held (7-3) that limiting the partner's criminal practice to cases the county attorney took no active part in did not cure the conflict; the partner still could not practice criminal law in that district court.

Q: What earlier opinion did the committee rely on?

A: It treated the question as substantially the same as Opinion 23, released in December 1949, and reached the same conclusion that the conduct would be unethical.

Background and rules framework

The opinion interprets former Texas Canon 6 (adverse influences and conflicting interests), applied to the partner of a public prosecutor. The modern analogs are ABA Model Rule 1.7 (conflicts of interest) and Model Rule 1.10 (imputation of conflicts within a firm).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest), as the modern analog
• MR 1.10 (imputation of conflicts), as the modern analog
• Texas Canon 6 (adverse influences and conflicting interests)

Other opinions cited:

• Tex. Comm. on Professional Ethics, Op. 23 (Dec. 1949), treated as substantially the same question

See also

• TX Ethics Op. 49: City Attorney Practicing Criminal Law Elsewhere
• TX Ethics Op. 48: County Attorney in Private Civil Practice
• TX Ethics Op. 32: Criminal District Attorney Prosecuting a Relative

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-37/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_37.pdf

Original opinion text

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

QUESTION PRESENTED

Under the canons of Ethics, is the law partner of the county attorney precluded from practicing criminal law in the district court of the county in which his partner is county attorney, if he restricts his criminal practice to those cases in which the county attorney takes no active part in the preparation and prosecution of the State's case?

18 Baylor L. Rev. 212 (1966)

CONFLICTING INTEREST - EMPLOYMENT - LAW PARTNER OF COUNTY A TTORNEY
The law partner of a county attorney may not practice criminal law in the district court of the county in which his partner is county attorney.

Canon 6.

The committee is of the view that this is substantially the same question covered by Opinion 23 released in December 1949, and that such conduct would be unethical. (7-3)

Tex. Comm. On Professional Ethics, Op. 37 (1951)