OPINION 143
June 1956

PROSECUTION OF THOSE ACCUSED OF CRIME -- CONFLICTING INTERESTS -- RETIREMENT FROM PUBLIC EMPLOYMENT -- DISTRICT ATTORNEY REPRESENTING CIVIL SUITORS -- Where a district attorney is prosecuting a defendant in criminal proceedings growing out of a highway accident, it would be improper for him or members of the law firm to which he belongs, to press a civil damage suit rowing out of the same accident against the same defendant since his duty to the public is generally adverse to his duty to the client in the civil litigation.

NEGOTIATIONS WITH OPPOSITE PARTY -- In prosecuting the criminal violation, the district attorney might be in a position to obtain information which, as an opposing attorney in a civil case, would not otherwise be available to him; this possibility precludes him from representing civil litigants in a suit arising out of the criminal violation.

Canons  5, 6, 9, 33.  A.B.A. Canons 6, 9, 36. 

Question

Is it a violation of the Canons of Ethics for an attorney actively engaged as a public prosecutor representing the State in criminal charges against "A" arising out of a highway accident, to accept employment on a contingent fee basis on behalf of "B" to press a civil damage suit (1) against "A" for damages allegedly resulting from such highway accident, or (2) against "A's" employer where liability against such employer is predicated solely upon the alleged acts of "A" in the course and scope of his employment, and (3) would the situation be any different if such civil actions were brought and conducted by other members of the law firm of which such public prosecutor was a member?

Opinion

A majority of the members of the committee were of the opinion there was a violation of the Canons of Ethics in each instance; Opinions 135 and 39 of the American Bar Association being cited by some of the members in support of their position.  Canons violated were designated (differently by various members) as Texas Canons 5, 69, and 33 and American Bar Canons 6, 9, and 36.  The interest of a prosecutor in his duty to the public was deemed to generally be adverse to his duty to a client in a civil case growing out of an occurrence which involved a possible criminal violation.

It was also pointed out that a public prosecutor was in a position to obtain information from persons confronted with criminal violations (often before represented by counsel) which as an opposing attorney in a civil case he normally could not obtain and that he should not be placed in a position to use such information to the detriment of the opposing party.  (7-2)