Can a lawyer who represents a civil plaintiff also help prosecute a criminal charge against the same defendant while the civil suit is still pending?

Plain-English summary

A lawyer represented a plaintiff in a civil suit alleging breach of contract, conversion, and fraud against the defendants. After filing, the plaintiff concluded the defendants' conduct might have violated criminal statutes and considered presenting the matter to the district attorney, discussing whether to use the civil lawyer's services to help prosecute. The plaintiff, who would be the criminal complainant, disavowed any intent to press charges solely for gain, saying he wanted the wrongdoer punished. It was assumed the plaintiff could relate the facts to the district attorney, grand jury, and trial jury without the civil lawyer's help, and that the district attorney could prosecute without that help. The civil suit remained pending.

The Committee applied DR 7-105, which bars a lawyer from presenting, participating in presenting, or threatening to present criminal charges solely to obtain an advantage in a civil matter. It observed that the word "solely" leaves some room if the motive is otherwise, but a different subjective motive is hard to establish while the civil case involving the same facts is pending. Even though the lawyer's assistance might not, standing alone, create a presumption that it was meant to bolster the civil case, the assistance would be rendered suspect as long as the possibility of a civil advantage existed, particularly because the lawyer's help appeared neither required nor necessary to the prosecution.

The Committee concluded the inquiry was within the purview of DR 7-105 and that, on the facts presented, the plaintiff's civil lawyer assisting in the criminal prosecutorial role would not be proper.

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, including the comprehensive 2021 revisions adopted by Texas Supreme Court order, and Texas never adopted the ABA's Ethics 2000 framework. The current Texas rule on threatening criminal or disciplinary charges to gain a civil advantage is Rule 4.04(b). 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 Treat this page as historical context, not current guidance.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 civil plaintiff's lawyer help prosecute the defendant criminally while the civil case is pending?

A: The Committee concluded that, on the facts presented, it would not be proper. The assistance is suspect under DR 7-105 as long as a civil advantage could result, especially where the lawyer's help is neither required nor necessary.

Q: Does the plaintiff's stated good motive change the result?

A: Per the opinion, not on these facts. Although DR 7-105 bars charges presented "solely" for civil advantage, the Committee found a different subjective motive hard to establish while the civil case on the same facts is pending.

Q: Why did the lawyer's role being unnecessary matter?

A: The Committee emphasized that because the plaintiff and the district attorney could proceed without the civil lawyer, the lawyer's assistance appeared neither required nor necessary, which reinforced that it would be suspect.

Background and rules framework

The opinion interprets DR 7-105 of the former Texas Code of Professional Responsibility (no presenting, participating in, or threatening criminal charges solely to obtain an advantage in a civil matter). The ABA Model Rules contain no direct successor to DR 7-105; conduct of this kind is now generally analyzed under provisions such as Model Rule 8.4, and the current Texas counterpart is Rule 4.04(b). The analysis turns on the difficulty of separating motive while the same-facts civil suit is pending and on whether the lawyer's assistance is necessary to the prosecution.

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct; modern hook for conduct DR 7-105 addressed)
• DR 7-105, Texas Code of Professional Responsibility (no criminal charges solely to gain a civil advantage)

See also

• TX Ethics Op. 457: Referring a Client's Dishonored Fee Check to the District Attorney
• TX Ethics Op. 614: Conditioning Settlement on an Affidavit Acceptable to the Client

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-455/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_455.pdf

Original opinion text

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

QUESTION PRESENTED

Should a lawyer, who represents a plaintiff in a civil suit alleging a cause of action against the defendants for damages for breach of contract, conversion and fraud, "assist" in prosecuting a criminal charge against such defendant?

STATEMENT OF FACTS

After filing the civil suit, plaintiff has determined that the civil defendants conduct may have violated one or more criminal statutes, and is considering whether to present the matter to the District Attorney for appropriate action, and has discussed with plaintiff's lawyer the possibility of using his legal services in prosecuting such a criminal charge against such defendant. The civil plaintiff, who would be the complainant in such a criminal action, disavows any intent to press criminal charges solely for gain, and purports to be motivated by a feeling that the wrongdoer should be punished. It is assumed that the civil plaintiff would be able, without the "assistance" of the civil case lawyer, to relate the facts to the District Attorney, Grand Jury, and Petit Jury, and, likewise, that the District Attorney would be able, without the "assistance" of the civil case lawyer, to adequately prosecute a criminal charge. The civil suit remains pending and has not been tried or disposed of by final judgment.

DISCUSSION

DR 7-105 states that a lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter. While inclusion of the word "solely" in the Disciplinary Rule may indicate some possibility of permissiveness if the motive were other than as proscribed, a different subjective motive may be difficult of ascertainment, especially during the pendency of the civil case involving the same factual situation. While "assistance" of the civil case lawyer in prosecuting a criminal charge involving facts common to both cases may not, standing alone, rise to a presumption that it is done to bolster the civil case under the facts here stated in light of the disavowal of the civil plaintiff to press charges solely for gain, at least the lawyer's "assistance" in presenting and prosecuting the criminal charge would be rendered suspect as long as the possibility of advantage therefrom exists in the pending civil suit. This is especially true in light of the circumstances that the lawyer's "assistance" appears to be neither required nor necessary to criminal prosecution under these facts.

CONCLUSION

We consider the inquiry presented to be within the purview of DR 7-105, and, therefore, find that, under the facts presented, "assistance" by the attorney for the plaintiff in the pending civil suit in the criminal prosecutorial role would not be proper.

Tex. Comm. On Professional Ethics, Op. 455 (1987)