Opinion 419

Statement of Facts Discussion Conclusion

Article 2.08 of the Texas Code of Criminal Procedure provides: "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."

Under Article 2.08, a county attorney is disqualified from representing any defendant in any criminal proceeding in any court in Texas. The precise question presented is whether a county attorney's disqualification applies to other lawyers who are his partners or associates.

The question presented was considered several times when prior Canon 6 of the Texas Canons of Ethics governed the conduct of attorneys. In each instance, the same conclusion was reached. Partners and associates of a district attorney or county attorney are disqualified from acting as defense counsel in any criminal case. See Opinion 318, October 1966; Opinion 323, October 1966; Opinion 187, October 1958; and Opinion 23, December 1949.

Disciplinary Rule 5-105 of the Texas Code of Professional Responsibility provides that a lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment. Even absent the express disqualification provided by Article 2.08 of the Texas Code of Criminal Procedure, Disciplinary Rule 5-105 would require a county attorney or district attorney to decline employment by defendants in criminal cases.

Disciplinary Rule 5-105 contains an exception, however, which allows a lawyer to represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each. That exception does not permit a county attorney to represent defendants in criminal cases because the State, which is his client, has not consented to his representation of defendants in criminal cases. In fact, the State's consent has been expressly withheld by Article 2.08.

Paragraph (D) of Disciplinary Rule 5-105 provides that if a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment. Since a county attorney is expressly disqualified from being of counsel adversely to the State in any case, in any court, no partner or associate of his or his firm may accept employment adversely to the State in any case, in any court.

The committee is of the opinion that no partner or associate of a county attorney may represent a defendant in a criminal proceeding in any case, in any court, in Texas. (7-1).