If a lawyer serves as county attorney, can the partners or associates in his firm defend criminal cases, at least in other counties?

Plain-English summary

The inquiry asked whether, if a lawyer holds the office of county attorney, his partners or associates may represent criminal defendants before courts in counties where he does not serve as county attorney.

The Committee began with Article 2.08 of the Texas Code of Criminal Procedure, which bars district and county attorneys from being of counsel adversely to the State in any case in any court. Under that statute, a county attorney is disqualified from representing any criminal defendant in any Texas court. The Committee noted that prior opinions under former Canon 6 had repeatedly reached the same conclusion as to partners and associates, citing Opinions 318, 323, 187, and 23. It added that even without Article 2.08, DR 5-105 would require the county attorney to decline criminal-defense employment, and that the rule's multiple-client exception did not apply because the State, his client, had not consented and had expressly withheld consent through Article 2.08.

Applying DR 5-105(D), which provides that when a lawyer must decline or withdraw from employment under DR 5-105 no partner or associate of the firm may accept or continue that employment, the Committee concluded that because the county attorney is disqualified from being adverse to the State in any case in any court, no partner or associate may take employment adverse to the State in any case in any court. The Committee held, 7-1, that no partner or associate of a county attorney may represent a criminal defendant in any case in any Texas court.

Currency note

This opinion was issued in 1984, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. The current Texas rules on conflicts and imputation are in Rules 1.06-1.09 and on government lawyers in Rule 1.10, with closest ABA analogs Model Rules 1.7, 1.10, and 1.11; later Texas opinions have treated a government office differently from a private firm for screening purposes. Subsequent rule changes 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 Treat this page as historical context, not current guidance.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 in a different county?

A: Per the opinion, no. The Committee concluded the county attorney's disqualification reaches any case in any Texas court, and DR 5-105(D) imputes it to every partner and associate, so they may not defend a criminal case anywhere in Texas.

Q: Why couldn't the multiple-client exception save the representation?

A: The Committee concluded the DR 5-105 exception requires the affected client's consent, and the State, the county attorney's client, had not consented and had expressly withheld consent through Article 2.08 of the Code of Criminal Procedure.

Q: Did the disqualification depend on the statute alone?

A: No. The Committee concluded that even absent Article 2.08, DR 5-105 would require a county or district attorney to decline criminal-defense employment, and DR 5-105(D) would then bar the firm's other lawyers as well.

Background and rules framework

The opinion interprets DR 5-105 of the former Texas Code of Professional Responsibility (declining employment where independent professional judgment would be adversely affected) and DR 5-105(D) (imputing a required declination or withdrawal to all partners and associates), together with Article 2.08 of the Texas Code of Criminal Procedure. The closest current concepts are Texas Rules 1.06-1.10 and Model Rules 1.7, 1.10, and 1.11. The analysis turns on the statutory disqualification of a county attorney and its imputation to the firm.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest, current clients)
• MR 1.10 (imputation of conflicts)
• MR 1.11 (special conflicts for former and current government officers)
• DR 5-105, DR 5-105(D), Texas Code of Professional Responsibility

Statutes:

• Article 2.08, Texas Code of Criminal Procedure (district and county attorneys may not be of counsel adversely to the State)

Other opinions cited:

• Texas Professional Ethics Committee Opinions 318 (1966), 323 (1966), 187 (1958), and 23 (1949): partners and associates of a district or county attorney are disqualified from criminal defense

See also

• TX Ethics Op. 430: DA-Office Attorney Representing a Colleague With an Office Witness
• TX Ethics Op. 441: Domestic-Relations-Office Conflict and Screening of Colleagues
• TX Ethics Op. 429: Part-Time City Judge Defending a Criminal Case With Police Witnesses

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-419/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_419.pdf

Original opinion text

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

QUESTION PRESENTED

If a lawyer holds the office of county attorney, may his partners or associates represent defendants in criminal cases before courts in counties in which he does not serve as county attorney?

DISCUSSION

Article 2.08 of the Texas Code of Criminal Procedure provides: "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."

Under Article 2.08, a county attorney is disqualified from representing any defendant in any criminal proceeding in any court in Texas. The precise question presented is whether a county attorney's disqualification applies to other lawyers who are his partners or associates.

The question presented was considered several times when prior Canon 6 of the Texas Canons of Ethics governed the conduct of attorneys. In each instance, the same conclusion was reached. Partners and associates of a district attorney or county attorney are disqualified from acting as defense counsel in any criminal case. See Opinion 318, October 1966; Opinion 323, October 1966; Opinion 187, October 1958; and Opinion 23, December 1949.

Disciplinary Rule 5-105 of the Texas Code of Professional Responsibility provides that a lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment. Even absent the express disqualification provided by Article 2.08 of the Texas Code of Criminal Procedure, Disciplinary Rule 5-105 would require a county attorney or district attorney to decline employment by defendants in criminal cases.

Disciplinary Rule 5-105 contains an exception, however, which allows a lawyer to represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each. That exception does not permit a county attorney to represent defendants in criminal cases because the State, which is his client, has not consented to his representation of defendants in criminal cases. In fact, the State's consent has been expressly withheld by Article 2.08.

Paragraph (D) of Disciplinary Rule 5-105 provides that if a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment. Since a county attorney is expressly disqualified from being of counsel adversely to the State in any case, in any court, no partner or associate of his or his firm may accept employment adversely to the State in any case, in any court.

The committee is of the opinion that no partner or associate of a county attorney may represent a defendant in a criminal proceeding in any case, in any court, in Texas. (7-1).

CONCLUSION

The committee is of the opinion that no partner or associate of a county attorney may represent a defendant in a criminal proceeding in any case, in any court, in Texas. (7-1).

Tex. Comm. On Professional Ethics, Op. 419 (19884)