Opinion 412
Question Presented
In the circumstances described below, does the preparation and issuance by an attorney for an organization of public employees, of a legal opinion in connection with an employment dispute constitute a violation of the Texas Code of Professional Responsibility?
An attorney in the private practice of law represents an organization of employees who are peace officers employed by a political subdivision of the State of Texas. In connection with a dispute between the employee organization and the director of the law enforcement agency that employs the members of the organization, the attorney is retained by the organization to prepare a statement that is designated as a legal opinion and signed by the lawyer as "attorney at law." The opinion recommends a course of conduct contrary to certain orders issued by the director of the law enforcement agency to the peace officer members of the employee organization. The opinion is prepared by the attorney to be circulated to the employee members of the employee organization and is in fact circulated after the opinion has been approved by the employee organization. The person requesting the opinion of the Professional Ethics Committee has alleged that the legal opinion recommends a course of conduct by the employees that is contrary to the legal obligations of the employees.
Since the Professional Ethics Committee does not issue opinions on questions of law, the committee expresses no opinion as to whether the legal opinion in question is in accord with, or contrary to, applicable law.
If the legal opinion is a correct statement of law and the legal obligations of the members of the employee organization, issuance of the opinion does not involve violation of any Disciplinary Rule (DR) of the Texas Code of Professional Responsibility.
If the legal opinion in question recommends a course of conduct that is contrary to law, the mere fact of legal error would not itself be grounds for finding the attorney to be in violation of the Texas Code of Professional Responsibility. Whether a violation would be involved would in many cases turn on the mental state of the attorney when he prepared the opinion recommending illegal conduct. If the attorney, with knowledge of the correct legal standard, deliberately issued an opinion recommending conduct that the attorney knew was contrary to law, the attorney would violate DR 1-102(A)(4) by engaging "in conduct involving dishonesty, fraud, deceit, or misrepresentation." Moreover, since the actions of peace officers are involved, the attorney might also be in violation of DR 1-102(A)(5) through engaging "in conduct that is prejudicial to the administration of justice." In addition, the attorney would be in violation of DR 7-102(A)(5) and (7) by knowingly making a false statement of law or fact and by counseling or assisting his client in conduct that the lawyer knows to be illegal.
Even if the lawyer could not be shown to have deliberately issued an erroneous opinion, the lawyer would be in violation of DR 6-101(A) if the erroneous opinion was issued because the lawyer handled a legal matter that he knew or should have known was beyond his competence or handled a legal matter without preparation adequate in the circumstances.
However, if the lawyer acted competently in preparing his opinion and issued it in the belief that the opinion was correct, the fact that the opinion was actually erroneous would not cause the lawyer to be in violation of the Texas Code of Professional Responsibility.
A lawyer for an organization of peace officers who issues an erroneous opinion as to the obligations of the peace officers would be in violation of the Texas Code of Professional Responsibility if the opinion were issued by the attorney with knowledge that the opinion recommended illegal conduct or as a result of the failure of the attorney to act competently in the circumstances. Issuance of an opinion that is erroneous because of an honest mistake and not because of the attorney's failure to act with due care would not involve any violation of the Texas Code of Professional Responsibility. Issuance of a correct opinion in such circumstances would also not involve violation of the Texas Code of Professional Responsibility. (9-0.)
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 412 (1984)