Can a lawyer who serves as a city commissioner defend criminal cases where the city's police investigated, were victims, or where the city judge issued the warrant, and can the lawyer's partner?

Plain-English summary

The questions asked whether Attorney X, a partner in a two-person firm who also serves as a city commissioner of a home-rule city, may represent criminal defendants in county and district courts where the city police participated in the investigation or arrest, where city police officers are victims (for example, assault on a peace officer), or where the city judge issued the arrest or search warrant, and whether his partner Attorney Y may do so. The city has a city-manager form of government; the commission hires only the city manager, city judge, and city attorney, sets the police budget, and appoints the civil service commission that hears police disciplinary appeals.

The Committee analyzed the situation under Rules 1.06(b)(2), 1.06(c)(2), and 1.06(f). Rule 1.06(b)(2) bars representation that reasonably appears to be or become adversely limited by the lawyer's responsibilities to another client or third person or by the lawyer's own interests. Although Attorney X does not run the police department day to day, as a commissioner he appoints the city manager who directs it, and police conduct reflects on the commissioners; representing defendants where city police investigated, arrested, or were victims places him in a conflict between the city's (and thus his) interests and his client's, and puts officers in an awkward position. The Committee found his control over the city judge even greater, since the commission hires the judge, so the judge's actions on warrants bear on both the client and the city's (and X's) interests.

Noting that a public officer is held to a high standard of integrity (Comment 7 to Rule 8.04) and citing Opinion 429 (a part-time associate city judge may not represent an accused where city police are potential witnesses), the Committee concluded that the representation violates Rule 1.06(b)(2), and that because Attorney X may not represent these defendants, neither may his partner Attorney Y under Rule 1.06(f). The Committee added, however, that under Rule 1.06(c) the representation would not violate the rules if Attorney X believes it will not be materially affected and both the client and the city consent after full disclosure of the existence, nature, implications, and possible adverse consequences and any advantages.

Currency note

This opinion was issued in 1994, under the Texas Disciplinary Rules of Professional Conduct that took effect January 1, 1990. Texas did not adopt the ABA's Ethics 2000 revisions; its rules have been amended only piecemeal since, including the comprehensive 2021 revisions adopted by Texas Supreme Court order. 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: Can a city-commissioner lawyer defend criminal cases involving the city's own police?

A: The Committee concluded such representation creates a Rule 1.06(b)(2) conflict between the lawyer's interests as a commissioner and his client's interests, unless cured by consent under Rule 1.06(c).

Q: Does the conflict extend to the lawyer's law partner?

A: Yes. The Committee concluded that because Attorney X may not represent these defendants, his partner Attorney Y is also barred under Rule 1.06(f), absent the required consent.

Q: Can the conflict be waived?

A: The Committee concluded the representation is permitted if the lawyer reasonably believes it will not be materially affected and both the client and the city consent after full disclosure under Rule 1.06(c).

Background and rules framework

The opinion interprets Texas Disciplinary Rule 1.06 (conflict of interest: general rule; ABA Model Rule 1.7), specifically 1.06(b)(2) (representation adversely limited by the lawyer's own interests), 1.06(c) (consent), and 1.06(f) (imputation to the lawyer's firm; related to Model Rule 1.10), and notes Comment 7 to Rule 8.04 on a public officer's high standard of integrity. It relies on Opinion 429.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients), MR 1.10 (imputation of conflicts)
• Texas Disciplinary Rules 1.06 (incl. 1.06(b)(2), (c)(2), (f)), 8.04 (Comment 7)

Other opinions cited:

• Tex. Ethics Op. 429: a part-time associate city judge may not represent a person accused of a crime where the city's police are or may be potential witnesses

See also

• TX Ethics Op. 530: A County Commissioner Practicing Law in County Courts
• TX Ethics Op. 539: A Lawyer Whose Spouse Is an Assistant District Attorney
• TX Ethics Op. 544: A City Councilmember Voting on a Former Firm Client's Matter

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-497/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_497.pdf

Original opinion text

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

QUESTION PRESENTED

May Attorney X, while serving as a city commissioner on the city commission of a home-rule Texas city, represent persons charged with criminal offenses in the county and district courts where the city police department participates in the investigation and/or arrest of the defendant? May Attorney Y, his law partner, represent such persons?
May Attorney X represent persons charged with criminal offenses in the county and district courts where members of the city police department are victims (i.e., assault on a peace officer)? May Attorney Y represent such persons?
May Attorney X represent persons charged with criminal offenses in the county and district courts where the arrest and/or search warrant in the case is issued by the city judge? May Attorney Y represent such persons?

STATEMENT OF FACTS

Attorney X is a partner in a two-person firm in a small Texas city. Attorney X also serves as a city commissioner on the city commission of this same home-rule Texas city. The city has a city manager form of government. The city commission hires only the city manager, city judge, and city attorney. All other city positions are filled by the city manager under the city's charter. The city commission does set the police department budget and appoint members to the civil service commission who hear police disciplinary appeals, but has no control or input into the police disciplinary appeals process other than the confirmation of appointments to the civil service commission. Attorney X and his partner Attorney Y have a criminal and civil trial practice and take criminal cases both on a retained and court appointed basis.

DISCUSSION

The applicable rules of the Texas Disciplinary Rules of Professional Conduct which govern this situation are Rules 1.06(b)(2), 1.06(c)(2) and 1.06(f).

Rules 1.06(b)(2) prohibits the representation of a person if the representation reasonably appears to be or becomes adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's law firm's own interests.

Although Attorney X does not exercise control over the day to day operations of the city police department, as a City commissioner, he appoints the city manager, who does ultimately direct the activities of the police department. Certainly, the actions of police officers within a city reflect upon the city commissioners. By representing a person charged with criminal offenses where the city police department participates in the investigation and/or arrest of the defendant, or where the police officers are victims of a crime, Attorney X places himself in a conflict between protecting the city's (and since he is a commissioner, his) interests and in protecting the interests of his client. This situation would also place the police officers in the awkward position of performing their job duties while dealing with a city commissioner who is acting as an attorney in the case.

As a city commissioner, Attorney X exercises even more control over the city judge than he does over the police officers. The city commission actually hires the city judge. The actions of the city judge in executing the arrest and/or search warrant, and any other action taken by the judge would necessarily affect the welfare of the Attorney X's client. However, if the judge did not perform his job properly, the welfare of the city, and hence that of the city commission which is the personal interest of Attorney X, would be affected.

A similar issue was addressed in Ethics Opinion 429, wherein it was decided that a part-time associate city judge may not represent a person accused of a crime where the police in that city are or may be potential witnesses in the trial of that case.

Attorney X is a public officer, and, or such, is held to a high standard of integrity (Comment 7, Rule 8.04). Having an attorney who is a city commissioner involved in representation of criminal defendants in which employees of the city are involved creates a conflict between the client's interests and city's interests as well as the attorney's own interests. Such representation violates Disciplinary Rule 1.06(b)(2). Further, since Attorney X may not represent these criminal defendants, neither can his partner, Attorney Y. See Rule 1.06(f).

However, Rule 1.06(c) provides for the affected parties to consent to such representation. If lawyer X believes that the representation of his client will not be materially affected by his service as a city commissioner (and vice versa), and both the client and the city consent to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any, such representation would not be in violation of the Disciplinary Rules.

CONCLUSION

The representation of a private client by Attorney X, who is also a city commissioner, and Attorney Y, the law partner of Attorney X, in any of the three proposed situations would be a violation of Disciplinary Rule 1.06(b), unless all parties give appropriate consent after consultation and full disclosure pursuant to Rule 1.06(c).

Tex. Comm. On Professional Ethics, Op. 497 (1994)