Opinion 148
Question Presented
In a jury case that had been pending four months, and in which the two defendants had jointly obtained three continuances, and in which a member of the Legislature was employed by said defendants (in addition to two other firms of attorneys already employed), within thirty days of the convening of the Legislature and within three days of the date on which said case was specially set for trial;
- Was it unethical for such legislator under such circumstances to accept employment (a) for the purpose of making available to defendants the right to a mandatory continuance under Article 2168a, or (b) with the understanding he will move for such a continuance?
- Was it unethical for defendant's attorneys under such circumstances to employ such legislator (a) for such purpose, or (b) with such understanding?
18 Baylor L. Rev. 257 (1966)
EXPEDITION - EMPLOYMENT OF LEGISLATORS
It is improper for defendant's counsel to employ a member of the Legislature as co-counsel for the sole purpose of securing a continuance of a case set for trial. Likewise, it would be improper for the legislator to accept such employment under those circumstances.
Canon 18.
In the question submitted the committee is asked to assume that the legislator was hired to secure a continuance.
All of the members of the committee except one (with one member disqualifying himself) are of the opinion that it is unethical, both as to the legislator and the attorneys employing him, for the legislator under the facts stated to accept employment for the sole purpose of securing a continuance. One member, while condemning the practice, believes such action not unethical as long as Art. 2168a remains on the statute books and that the remedy is to amend or repeal such statute.
Rule 254 provides that a legislator attorney seeking a continuance must make affidavit, along with the party, that his presence is necessary to a fair and proper trial of the cause. This is as the committee members feel it should be. However, by Acts 1949, 51st Leg., p. 1111, ch. 669, the Legislature reenacted Art. 2168a, which apparently was intended to supersede Rule 254. Nevertheless, all of the committee voting except one were of the opinion Rule 254 gives expression to the ethical consideration involved. (6-1)
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 148 (1957)