Can a lawyer who serves as a city's mayor or council member practice in the municipal court or represent clients against the city or its police, and does the bar apply to the lawyer's partners?

Plain-English summary

The inquiry asked whether a lawyer who serves as a city's mayor or as a member of its city council may engage in a series of activities: practicing in the municipal court (including getting bonds set), filing municipal-court appeals and representing the defendant on appeal, defending in criminal cases initiated by the city's police where an officer is a material adverse witness, representing a party adverse to the city in a civil case, representing an adverse interest in a civil case brought by a city official where a city employee will be a material witness, and defending in a criminal case brought by another agency where a city police officer will be a prosecution witness. It also asked whether the official's partners or associates may do these things, and whether a city may by ordinance impose conduct requirements stricter than the Code.

The Committee anchored its analysis in Canons 5, 8, and 9 and the related provisions on independent professional judgment (EC 5-1), not using public office to influence a tribunal in favor of a client (DR 8-101(A)(2)), avoiding the appearance of impropriety (Canon 9, EC 9-1), and not accepting private employment in a matter in which the lawyer had substantial responsibility as a public employee (DR 9-101(B)). Relying on its prior Opinions 82 and 272 and ethics opinions from other states, it answered Questions A(1) through A(6) that such acts are not proper, except that A(6) is permissible if other officers or witnesses can testify to the same facts as the city police officer.

On the remaining questions, the Committee concluded, relying on its prior Opinions 197 and 272 and a Virginia opinion, that where the official should not perform an act, neither should his partner or associate. It also concluded that, when not in conflict with its charter or with state or federal law, a city may prescribe by ordinance additional conduct requirements for its council members and mayor.

Currency note

This opinion was issued in 1975, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Conflicts of interest are now governed by Texas Rule 1.06, special conflicts for present and former government lawyers by Texas Rule 1.10, and misconduct involving public office by Texas Rule 8.04; the ABA analogs are Model Rules 1.7, 1.11, and 8.4. 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: Could a lawyer who is mayor or a council member practice in the city's municipal court?

A: Per the opinion, generally no. The Committee answered Questions A(1) through A(6) that such acts are not proper, subject to one narrow exception.

Q: What was the exception the Committee recognized?

A: For A(6), defending a criminal case brought by another agency where a city police officer would testify, the Committee said it is permissible if other officers or witnesses can testify to the same facts as the city police officer.

Q: Did the restrictions apply to the official's law partners?

A: Yes. The Committee concluded that where the official should not perform an act, neither should his partner or associate.

Q: Could a city impose stricter rules by ordinance?

A: The Committee said a city may prescribe additional conduct requirements for its council members and mayor by ordinance, when not in conflict with its charter or with state or federal law.

Background and rules framework

The opinion interprets Canons 5, 8, and 9 of the former Texas Code of Professional Responsibility, with EC 5-1 on independent judgment, DR 8-101(A)(2) on a lawyer who holds public office, EC 9-1 on public confidence, and DR 9-101(B) on private employment after public responsibility. The Committee read these together to bar a lawyer-official from acting where the public role and the private representation collide, and extended the bar to partners and associates. The modern analogs are Texas Rules 1.06, 1.10, and 8.04, with ABA Model Rules 1.7, 1.11, and 8.4.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest); MR 1.11 (special conflicts for government officers); MR 8.4 (misconduct), as the modern analogs
• Canons 5, 8, 9; EC 5-1, EC 9-1; DR 8-101(A)(2), DR 9-101(B) (former Texas Code of Professional Responsibility)

Other opinions cited:

• Tex. Comm. on Professional Ethics, Ops. 82, 197, 272: lawyers holding public office
• Colorado Ethics Opinion 18 (1969); Oregon State Bar Ethics Opinion 24; Virginia State Bar Ethics Opinion 136 (1964)

See also

• TX Ethics Op. 399: Prosecutor as Witness From the Same District Attorney's Office
• TX Ethics Op. 388: Going Off a Bail Bond Posted for a Client
• TX Ethics Op. 401: Attorney Serving a Collection Agency Arrangement

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-382/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_382.pdf

Original opinion text

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

QUESTION PRESENTED

A. Is it proper for an attorney who is Mayor or the member of a City Council of a City to:
Practice in the Municipal Court including getting bonds set by the Judge of such court.
File an appeal in Municipal Court for the purpose of obtaining a trial de novo of the same cause in the County Court and represent a defendant on appeal of such criminal case.
Represent a defendant in a criminal case initiated by the Police Department of the City where the Police officer will be a material adverse witness against such defendant.
In a civil case represent a party with an interest adverse to the City.
Represent an adverse interest in a civil case instituted by an official of the City in the course of his official duty where some agent, servant or employee of the City acting in the course of official duties will be a material witness in the prosecution or defense of such case.
Represent a defendant in a criminal case instituted by another agency where a Police officer acting in the course of his official duties will be a witness for the prosecution?
B. Is it proper for a partner or an associate of a Mayor or a member of the City Council to engage in any of the above acts prohibited in Question (A) above? C. May a City enact legislation by ordinance which in its effect upon attorneys who are officials or employees of the City would be more stringent than the Code of Professional Responsibility of the State Bar of Texas?

STATEMENT OF FACTS

CITY OFFICIALS - CONFLICT OF INTEREST

Canons 5, 8 & 9

"A lawyer should exercise independent professional judgment on behalf of a client" (Canon 5). "The professional judgment of a lawyer should be exercised within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client" (EC 5-1).

"A lawyer who holds public office shall not use his public position to influence, or attempt to influence a tribunal to act in favor of himself or of a client" (DR 8-101) (A) (2). "A lawyer should avoid even the appearance of professional impropriety" (Canon 9). "Continuance of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our system and in the legal profession" (ED 9-1). "A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee" (DR 9-101) (b).

Based on the above as well as our prior Opinions No. 82 and No. 272, also Colorado Ethics Opinion No. 18, dated January 20, 1969, also 38 Mich. S.B.J. 171 and Oregon State Bar Ethics Opinion No. 24 we answer Question (A) (1) through (6) that such acts are not proper, except under (A) (6) such is permissible if there are other officers and/or witnesses that can testify to the same facts as the City Police Officer.

Based on the above as well as our prior Opinions No. 197 and No. 272, and Virginia State Bar Ethics Opinion 136, dated November 27, 1964, we answer that where the official should not perform such acts, then his partner or associate should not.

When not in conflict with its Charter, State law or Federal law, a City may prescribe by ordinance additional conduct requirements for the members of its City Council and its Mayor (See 39 Tex. Juris 2nd 578 and RS Art. 1011).

Tex. Comm. On Professional Ethics, Op. 382 (1975)