If a government lawyer prosecuted a contempt motion for the wife, can the lawyer (or anyone else in the same office) later prosecute the wife on the same divorce decree?

Plain-English summary

Attorney A, working for a county domestic relations office, filed a contempt motion against the husband for violating a divorce decree's terms on support, conservatorship, or access, in the divorce action styled Husband v. Wife. The inquiry asked whether A could later or simultaneously prosecute the wife for violating the same decree, and, if not, whether all the attorneys in the office were disqualified from prosecuting the wife.

The Committee applied DR 5-105(B), which bars continuing multiple employment if the lawyer's independent professional judgment for one client will likely be adversely affected by the representation of another, except as permitted by DR 5-105(C). Because A had represented the wife in prosecuting the husband, DR 5-105(B) clearly prohibited A from then prosecuting the wife on the same decree.

On the office-wide question, the Committee concluded that other attorneys in the domestic relations office were not disqualified, provided the conflicted attorney was screened and the wife's confidential information was protected. Although Opinion 399 (February 1981) treats attorneys in a district attorney's office as members of a "firm" for purposes of DR 5-102(A), the Committee held that DR 5-105(D)'s imputed disqualification should not bar the office here. It reasoned that a county domestic relations office serves the public, that an inflexible first-spouse-only rule could limit access to assistance and encourage a "race to the office," and it relied on ABA Formal Opinion 342 (Nov. 24, 1975), which held that the relationships among government lawyers differ from those among private partners and associates, so screening, not blanket disqualification, is the appropriate safeguard. The Committee concluded that A may not prosecute the wife, but another office attorney may if (i) A is screened from any direct or indirect participation and from discussions with colleagues about the prosecution, and (ii) the wife's confidential files from the prior proceedings are made unavailable to the attorneys handling the new prosecution.

Currency note

This opinion was issued in 1987, 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, imputation, and government lawyers are Rules 1.06, 1.09, and 1.10, with closest ABA analogs Model Rules 1.7, 1.10, and 1.11. 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 the lawyer who prosecuted for one spouse later prosecute the other spouse on the same decree?

A: Per the opinion, no. The Committee concluded DR 5-105(B) clearly prohibits the attorney from prosecuting the wife after having represented her in prosecuting the husband.

Q: Are all the lawyers in the government office disqualified too?

A: No. The Committee concluded other attorneys in the county domestic relations office may prosecute the wife if the conflicted attorney is screened from any participation and discussions, and the wife's confidential files are made unavailable to them.

Q: Why doesn't DR 5-105(D) imputation apply to the whole office?

A: The Committee relied on ABA Formal Opinion 342, reasoning that government lawyers' relationships differ from those of private partners and associates, and that a blanket rule could limit public access and prompt a "race to the office." Screening was the chosen safeguard.

Background and rules framework

The opinion interprets DR 5-105(B) of the former Texas Code of Professional Responsibility (declining or continuing multiple employment that may impair independent professional judgment) and DR 5-105(D) (imputed disqualification of a lawyer's partners and associates). The closest current concepts are Texas Rules 1.06 and 1.09 and Model Rules 1.7 and 1.10 on conflicts and imputation, and Texas Rule 1.10 and Model Rule 1.11 on government lawyers. The analysis turns on whether a government office should be treated like a private firm for imputation, with screening offered as the alternative.

Citations and references

Rules of Professional Conduct:

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

Other opinions cited:

• ABA Formal Opinion 342 (Nov. 24, 1975) (government lawyers not subject to blanket imputed disqualification)
• Texas Professional Ethics Committee Opinion 399 (February 1981) (district attorney's office treated as a "firm" for DR 5-102(A))

See also

• TX Ethics Op. 454: Prosecutor When Office Colleagues Are Complaining Witnesses
• TX Ethics Op. 453: Associate Joining the Opposing Firm

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-441/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_441.pdf

Original opinion text

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

QUESTION PRESENTED

Attorney (A), who works for a county domestic relations office, files a motion for contempt against Husband (H) for having violated the terms of a divorce decree which provide for the support of, conservatorship of, or access to a child. The motion is filed in the divorce action styled Husband v. Wife. May A later, or simultaneously prosecute Wife (W) for violating the terms of that same decree?
If A may not prosecute W, are all of the attorneys employed by the domestic relations office in question disqualified from prosecuting W?

DISCUSSION

Disciplinary Rule 5-105(B) of the Code of Professional Responsibility provides: "A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C)."

A lawyer may not represent an interest adverse to a client's or a former client's interest if the two matters are substantially related. Such adverse representation is prohibited in order to avoid conflicts of interest. Moreover, representing an interest adverse to a client or a former client would likely entail the use of information gained in the related matter as client confidences. The Committee is of the opinion that DR 5-105(B) clearly prohibits A from prosecuting W when A also represented W in prosecuting H.

Although A could not under the Texas Code of Professional Responsibility prosecute W in these circumstances, the Committee does not believe that other attorneys employed by the domestic relations office would be disqualified from prosecuting W, provided that appropriate steps are taken to prevent in such prosecution any involvement by A and any use of any confidential information relating to A's prior work for W.

The Committee believes that permitting the domestic relations office to be involved in the prosecution of W does not violate the Texas Code of Professional Responsibility even though under DR 5-105(D) such action would not be permitted if a domestic relations office were a private law firm. DR 5- 105(D) provides as follows: "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." Although this Committee has held in Opinion 399 (Texas Bar Journal, February 1981) that attorneys in a district attorney's office are to be treated as members of a "firm" for purposes of DR 5-102(A) (regarding acting as a lawyer and as a witness in litigation), the Committee does not believe that DR 5-105(D) should apply to prevent prosecution of W by the domestic relations office after earlier prosecution of H. A county domestic relations office is intended to serve the public and an inflexible rule permitting domestic relations office attorneys in all cases to represent only the first spouse to be assisted by any attorney in the office could operate to limit the availability of assistance to spouses seeking help from the office. Such a rule could also result in some circumstances in the development of a practice whereby persons experiencing marital difficulties might engage in a "race to the office" in order to foreclose assistance to their spouses. In somewhat similar circumstances the American Bar Association Committee on Professional Responsibility has taken the position that DR 5-105(D) cannot be construed to foreclose a governmental department from holding a specific matter that was previously handled by an attorney in the governmental office when that attorney was in private practice. Formal Opinion 342 (Nov. 24, 1975). In reaching this conclusion, the ABA Committee noted that a contrary interpretation of the disciplinary rule would unreasonably impair the government's ability to function and is unnecessary because the relationships of the lawyers within a government agency are different from those among partners and associates in a law firm: "The salaried government employee does not have the financial interest in the success of departmental representation that is inherent in private practice. . . . The channeling of advocacy towards a just result as opposed to vindication of a particular claim lessens the temptation to circumvent the disciplinary rules through the action of associates." For these reasons, the ABA Committee held that disqualification of all lawyers in a government department was not necessary provided the individual lawyer was screened from any direct or indirect participation in the matter and from discussions with colleagues in the government office concerning the transaction.

It is the conclusion of the Committee that A as an attorney in a county domestic relations office may not prosecute W during or after prosecuting H. However, another attorney in the county domestic relations office may prosecute W provided that (I) A is screened from any direct or indirect participation in the prosecution of W and from discussions with colleagues concerning such prosecution and (ii) appropriate steps are taken to make unavailable to the attorneys in the domestic relations office involved in the prosecution of W all portions of the files of the domestic relations office reflecting confidential information obtained from W with respect to prior proceedings.

CONCLUSION

It is the conclusion of the Committee that A as an attorney in a county domestic relations office may not prosecute W during or after prosecuting H. However, another attorney in the county domestic relations office may prosecute W provided that (I) A is screened from any direct or indirect participation in the prosecution of W and from discussions with colleagues concerning such prosecution and (ii) appropriate steps are taken to make unavailable to the attorneys in the domestic relations office involved in the prosecution of W all portions of the files of the domestic relations office reflecting confidential information obtained from W with respect to prior proceedings.

Tex. Comm. On Professional Ethics, Op. 441 (1987)