Opinion 327
Question Presented
May an attorney act as defense counsel, either by appointment or by private employment, in felony cases within the district where he is acting as Probation Officer?
23 Baylor L. Rev. 855 (1972)
CONFLICT OF INTEREST - PROBATION OFFICER ACTING AS DEFENSE COUNSEL
An attorney may not act as defense counsel in felony cases in the district where he is also the Probation Officer.
Canons 4, 5, 6, 34.
Without attempting in any way to interpret Article 41.12 of the Texas Code of Criminal Procedure, we believe it is clear that the primary duty of a Probation Officer is to the public. It is equally clear that the primary duty of defense counsel is to the accused and such duty requires him to exert his best efforts in the prisoner's behalfΧCanon 4, to present by all fair and honorable means every defense that the law permitsΧCanon 5, and to represent the client with undivided fidelity and not reveal his secrets or confidencesΧCanons 6 and 34. Obviously, therefore, the Probation Officer cannot ethically act as defense counsel in any case in which there is or may be an application for probation.
Theoretically the Probation Officer would not be disqualified in cases not involving a question of probation but it is unlikely that such cases could be singled out in advance of appointment or employment. Therefore, it is our opinion that the Probation Officer should not act as defense counsel in any felony case within his district.
Aside from any ethical disqualification, such representation is discouraged because of potential public misinterpretation. (8-0.)
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 327 (1966)