Opinion 345

Statement of Facts Discussion Conclusion

23 Baylor L. Rev. 884 (1972)

REPRESENTATION OF DEFENDANT IN CRIMINAL CASE BY FORMER CIVIL ASSISTANT DISTRICT ATTORNEY - CONFLICT OF INTEREST - RETIREMENT FROM PUBLIC EMPLOYMENT
A former civil assistant in a District Attorney's Office may ethically represent a defendant in a criminal case where the indictment was returned after his separation from the office even though the offense allegedly occurred while he was in the office, provided he did not participate in the case in any way and did not obtain any information with respect thereto while on the District Attorney's staff.

Article 2.08, Code of Criminal Procedure.
Canons 6, 33.
ABA Canons 6, 36.

An attorney was employed in the Civil Section of a District Attorney's office. He did not participate in criminal matters in any way, had no access to criminal files, and obtained no information concerning any criminal matter. He terminated his employment with the District Attorney's office and after such termination indictments were returned against persons for offenses allegedly committed during the time that the attorney was on the District Attorney's staff.

Article 2.08 of the Texas Code of Criminal Procedure provides as follows:

"District and County Attorneys shall not be of counsel adversely to the State in any case, in any court, nor shall they, after they cease to be such officers, be of counsel adversely to the State in any case in which they have been of counsel for the State."

Texas Canon 6 and ABA Canon 6, of course, prohibit the representation of conflicting interest, except with the consent of all concerned after full disclosure. Texas Canon 33 further provides in part, as follows:

"A member, having once held public office or having been in the public employ, shall not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ, adverse to the interest previously represented by him while in such office or public employ...."

ABA Canon 36 is substantially the same but is somewhat more restrictive. It provides in part as follows:

"A lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ."

Under the statute and the Canons it is clear that the attorney would be disqualified to represent the criminal defendants if he had participated in any way in the cases or had gained any information about the cases while in the District Attorney's office. Texas Opinion 243 and ABA Opinion 134. The latter opinion further holds that an attorney is disqualified to accept subsequent employment in any case which arose while he was on the District Attorney's staff, whether or not he participated therein or gained any information with respect thereto, the basis of the disqualification being an appearance of impropriety insofar as the public is concerned.

Two members of our Committee would follow ABA Opinion 134 in all respects, although one of such members does not fully agree with the reasoning of that opinion. The majority of our Committee, however, feels that ABA Opinion 134 is too restrictive and that if the attorney did not in fact participate in criminal matters, had no access to criminal files, and gained no information with respect to the pending cases while on the District Attorney's staff as a civil assistant, there is no disqualification either under the statute or the Canons.

One member suggests that the broad prohibition of ABA Opinion 134 is likely to prove unworkable in small counties where there is a paucity of lawyers and that while broad guidelines are desirable, each case should be judged upon its particular circumstances. The majority of the Committee approves this suggestion and does not find in the present circumstances any ethical disqualification.

In any event, the attorney should make a full disclosure both to his proposed client and the District Attorney and if there is objection from either he would be well advised to disqualify even though there is no ethical disqualification. (6-2.)