Can I practice law in my county's justice, county, and district courts while serving as an elected county commissioner?

Plain-English summary

A lawyer was an elected county commissioner of Dallas County. By statute, the commissioners court holds budgetary and personnel authority over the county's courts and related offices: setting compensation for county officers and employees, setting statutory county court judges' salaries, paying district judges' salaries, approving court administrators and coordinators, providing court facilities, setting the criminal district attorney's county salary supplement, and approving salaries of assistant district attorneys and other DA personnel. The question was whether the commissioner could practice law in the county's justice, statutory county, and district courts, and whether any conflict was imputed to the firm. The Committee analyzed it under Rules 1.06(b)(2), 1.06(c), and 1.06(f).

The Committee reasoned that, although the commissioner does not exercise daily control over the courts, the perception of control through fiscal authority and personnel approvals is likely apparent to the public, the judges, and other court officials; because that authority extends to the salaries of the criminal district attorney and assistant district attorneys, a lawyer who practices in those courts is placed in a conflict between protecting the county's interest (which is also the commissioner's interest) and the client's interest. Rule 1.06(b)(2) prohibits representation that reasonably appears to be adversely limited by the lawyer's responsibilities to a third person (the county), and Rule 1.06(f) extends that prohibition to all members of the lawyer's firm.

The Committee relied on its earlier Opinion 497, which precluded a lawyer serving as a city commissioner, and the lawyer's partner, from representing criminal defendants in cases where the city police participated or the city judge issued the warrants, based on the same perceived influence flowing from budgetary and personnel authority. Because the Dallas County commissioners' authority is broader and reaches both criminal and civil courts, the Committee concluded the commissioner would violate Rule 1.06(b)(2) by representing a private client in any of those courts absent effective consent by all affected or potentially affected clients under Rule 1.06(c), and that the conflict applies to all lawyers associated with the commissioner's firm.

Currency note

This opinion was issued in 1999, 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 March 1, 2005 amendment to the fee rule, Rule 1.04, and 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 county commissioner represent private clients in the county's courts?

A: Not without consent. The Committee concluded the commissioner would violate Rule 1.06(b)(2) by representing private clients in the county's justice, statutory county, or district courts, because the commissioners' budgetary and personnel authority over those courts creates a conflict.

Q: Why does budgetary authority create the conflict?

A: The Committee reasoned that the commissioners' fiscal and personnel authority over the courts and the district attorney's office creates at least a perception of control, placing a commissioner-lawyer in a conflict between protecting the county's (and the commissioner's own) interest and the client's interest.

Q: Does the conflict extend to the commissioner's law partners?

A: Yes. The Committee concluded that under Rule 1.06(f) the conflict applies to all attorneys associated with the commissioner's law firm.

Q: Can the conflict be cured?

A: The Committee concluded the representation is permitted only with effective consent by all affected or potentially affected clients under Rule 1.06(c), and that whether consent is effective depends on whether a disinterested lawyer would conclude the client should not agree.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 1.06(b)(2) and (c) (general conflict of interest, ABA Model Rule 1.7) and Rule 1.06(f) (imputed disqualification, ABA Model Rule 1.10). The analysis turned on whether the budgetary and personnel authority a county commissioner holds over the county's courts and prosecutors adversely limits the commissioner's representation of private clients in those courts, and on the imputation of that conflict to the firm.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest)
• MR 1.10 (imputation of conflicts)
• Texas Disciplinary Rules 1.06(b), 1.06(c), 1.06(f)

Statutes referenced (factual background):

• Tex. Local Gov't Code § 152.011 (commissioners court sets compensation for county officers and employees)
• Tex. Gov't Code §§ 25.005, 32.057, 41.106, 44.157, 74.101 et seq., 75.201, 75.401 (commissioners court authority over court salaries, personnel, and the district attorney's office)

Other opinions cited:

• Tex. Ethics Op. 497 (Aug. 1994): a city commissioner and his partner barred from defending criminal cases involving the city's police and judge absent consent

See also

• TX Ethics Op. 540: County Judge Practicing Law in the County's Courts
• TX Ethics Op. 541: Municipal Court Judge Defending Criminal Cases Where City Police May Testify
• TX Ethics Op. 544: City Councilmember Voting on a Former Firm Client's Matter
• TX Ethics Op. 554: State Legislator Representing Clients in Courts in the Legislator's District

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-530/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_530.pdf

Original opinion text

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

QUESTION PRESENTED

Is it a conflict of interest for an Attorney ("Attorney") who is an elected county commissioner of Dallas County to practice law in the justice, statutory county, and district courts in Dallas County? If Attorney has a conflict of interest is it imputed to all members of his or her law firm?

STATEMENT OF FACTS

Attorney is an elected county commissioner of Dallas County. The county commissioners have budgetary authority and personnel approval authority applicable to the justice, statutory county, and district courts within Dallas County as provided by statute, as follows:

Local Government Code Section 152.011: The commissioners court of a county shall set the amount of compensation, office and travel expenses, and all other allowances for county and precinct officers and employees who are paid wholly from county funds.

Government Code Section 25.005: The commissioners court sets the salary of each statutory county court judge.

Government Code Section 75.401: In a county that has more than one county criminal court, those courts may establish and maintain, on approval of the commissioners court, a court administrator system. The court administrator is entitled to compensation as set by the commissioners court.

Government Code Section 32.057: The Commissioners Court of Dallas County shall budget for and pay to the judges of the judicial districts and criminal judicial districts in that county an annual salary of not less than $20,660 for administrative and judicial services, including services provided to the juvenile board.

Government Code Section 75.201: In Dallas County, a majority of the district judges with civil jurisdiction may appoint an assignment clerk. The commissioners court of the county shall set the salary of the assignment clerk on recommendation of the district judges.

The Dallas County Commissioners Court is responsible for approving the positions and compensation for court coordinators of district and statutory county courts (Govt. C., Sec. 74.101 et seq.); and for providing the physical facilities and amenities for courts (Govt. C., Secs. 25.0010 and 27.051). The Dallas County Commissioners Court is responsible for setting the county salary supplement of the Dallas County Criminal District Attorney (Govt. C., Sec. 44.157), and responsible for approving salaries of assistant district attorneys and all other district attorney personnel (Govt. C., Sec. 41.106). The Commissioners Court is also responsible for determining the daily reimbursement of expenses for jurors.

DISCUSSION

Attorney, as a county commissioner, is in a position of administrative authority over the justice, statutory county, and district courts of the county by virtue of the duties mandated by the statutes referenced. As such, although not in daily control over the workings of these courts, certainly the perception of control over the various courts through fiscal authority and the approval of personnel appointments is likely apparent not only to the public but to the judges and other officials of the courts. Further, the budgetary authority of the county commissioners extends to the salaries of the criminal district attorney, assistant district attorneys, and all other personnel in that office. The attorney, by practicing in these courts, places himself or herself in a conflict between protecting the county's (and since he or she is a commissioner, his or her) interest and protecting the client's interest.

The applicable rules of the Texas Disciplinary Rules of Professional Conduct governing this situation are Rules 1.06(b)(2), 1.06(c)(2), and 1.06(f). Rule 1.06(b)(2) prohibits the representation of a client if the representation reasonably appears to be or becomes adversely limited by the attorney's responsibilities to a third person (in this case, the county). Further, this prohibition applies to all members of Attorney's law firm (see Rule 1.06(f)). Rule 1.06(c) provides that the affected parties may consent to such representation after full disclosure if the attorney reasonably believes the representation of his or her client will not be materially affected. Whether consent is permissible or effective depends on whether a disinterested lawyer would conclude that the client should not agree to the representation.

This committee has addressed similar questions and delivered the same conclusions previously in Opinion 497, August 1994 (57 Tex.B.J. 1136, 1994). Opinion 497 precluded an attorney, while serving as a city commissioner of a small Texas city, and his law partner, from representing criminal defendants in the county and district courts in cases where the city police department participated in the investigation or arrest and when the arrest and/or search warrants were issued by the city judge. The underlying issue in that opinion, as in the instant opinion, was the perceived influence created by the budgetary and personnel authority of the city commissioners who hired the city judge, city manager, city attorney, and set the budget for the city police.

The influence or perceived influence of the Dallas County Commissioners extends to criminal and civil courts as a result of the broader budgetary and personnel authority extended to them by statute. If Attorney is representing a client in a criminal matter, or in a civil matter where the county is an adverse party, the county attorney or district attorney must also consider how this conflict under Rule 1.06(b)(2) affects their governmental entity client.

CONCLUSION

Attorney who is a county commissioner would violate Rule 1.06(b)(2) by representing a private client in any justice, statutory county, or district courts in that county in the absence of effective consent by all affected or potentially affected clients as required by Rule 1.06(c). This conflict of interest also applies to all attorneys associated with the Attorney's law firm.

Tex. Comm. On Professional Ethics, Op. 530 (1999)