Can a lawyer the victim consulted about serving as special prosecutor later defend the accused in the same criminal case?

Plain-English summary

In a statutory rape case, the prosecutrix sought to employ a lawyer as special prosecutor and related to him her version of the facts. The lawyer set a fee, but her father said he could not pay it, and there was no further conversation. The defendant then offered to employ the same lawyer as defense counsel.

The Committee concluded that acceptance of employment to represent the defendant under those facts would violate Canon 6 (8-0). The lawyer had received the prosecuting witness's account before the contemplated engagement fell through.

Currency note

This opinion was issued in 1954, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Duties to a prospective client who shares information in a consultation, and to a former client, are now governed by ABA Model Rules 1.18 and 1.9 and Texas Disciplinary Rules 1.05 and 1.09. 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 Treat this page as historical context, not current guidance.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: Could the lawyer defend the accused after the victim consulted him about prosecuting?

A: No. The Committee held that accepting the defense employment under these facts would violate Canon 6 (8-0).

Q: Did it matter that the lawyer was never actually hired as special prosecutor?

A: The opinion turned on the lawyer having received the prosecuting witness's version of the facts, even though the fee was never paid and no engagement followed.

Background and rules framework

The opinion interprets former Texas Canon 6 (representing conflicting interests), applied where a lawyer received an adverse party's confidential account during an aborted engagement. The modern analogs are ABA Model Rule 1.18 (duties to a prospective client) and Model Rule 1.9 (duties to former clients).

Citations and references

Rules of Professional Conduct:

• MR 1.18 (duties to a prospective client), as the modern analog
• MR 1.9 (duties to former clients)
• Texas Canon 6 (conflicting interests)

See also

• TX Ethics Op. 113: State Cannot Consent to DA Conflict
• TX Ethics Op. 104: Imputed Conflict From a New Partner
• TX Ethics Op. 109: District Attorney Conflict in a Related Divorce

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-94/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_94.pdf

Original opinion text

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

QUESTION PRESENTED

The prosecutrix in a statutory rape case sought to employ a member of the Bar as special prosecutor. The prosecutrix related to the attorney her version of the facts of the case, and the attorney set a fee for his services as special prosecutor. The father of prosecutrix advised the attorney he was unable to pay this fee, and no further conversation was had between them. Subsequently, the defendant in the ease offered to employ this attorney as defense counsel. Would it violate the Canons of Ethics for the attorney to accept employment as defense counsel under these circumstances?

18 Baylor L. Rev. 233 (1966)

EMPLOYMENT- ATTORNEY RECEIVING INFORMATION AS SPECIAL PROSECUTOR ACTING AS DEFENSE COUNSEL
An attorney, whose employment was sought as special prosecutor by the prosecuting witness in a criminal case, is prohibited from later accepting employment as defense counsel in the same case.

Canon 6.

The committee is of the opinion that the acceptance of employment to represent the defendant under the facts submitted would be in violation of Canon No. 6. (8- 0)

Tex. Comm. On Professional Ethics, Op. 94 (1954)