OPINION 441
March 1987

Questions Presented

1. Attorney (A), who works for a county domestic relations office, files a motion for contempt against Husband (H) for having violated the terms of a divorce decree which provide for the support of, conservatorship of, or access to a child. The motion is filed in the divorce action styled Husband v. Wife. May A later, or simultaneously prosecute Wife (W) for violating the terms of that same decree?

2. If A may not prosecute W, are all of the attorneys employed by the domestic relations office in question disqualified from prosecuting W?

Discussion

Disciplinary Rule 5-105(B) of the Code of Professional Responsibility provides: "A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C)."

A lawyer may not represent an interest adverse to a client's or a former client's interest if the two matters are substantially related. Such adverse representation is prohibited in order to avoid conflicts of interest. Moreover, representing an interest adverse to a client or a former client would likely entail the use of information gained in the related matter as client confidences. The Committee is of the opinion that DR 5-105(B) clearly prohibits A from prosecuting W when A also represented W in prosecuting H.

Although A could not under the Texas Code of Professional Responsibility prosecute W in these circumstances, the Committee does not believe that other attorneys employed by the domestic relations office would be disqualified from prosecuting W, provided that appropriate steps are taken to prevent in such prosecution any involvement by A and any use of any confidential information relating to A's prior work for W.

The Committee believes that permitting the domestic relations office to be involved in the prosecution of W does not violate the Texas Code of Professional Responsibility even though under DR 5-105(D) such action would not be permitted if a domestic relations office were a private law firm.

DR 5-105(D) provides as follows: "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." Although this Committee has held in Opinion 399 (Texas Bar Journal, February 1981) that attorneys in a district attorney's office are to be treated as members of a "firm" for purposes of DR 5-102(A) (regarding acting as a lawyer and as a witness in litigation), the Committee does not believe that DR 5-105(D) should apply to prevent prosecution of W by the domestic relations office after earlier prosecution of H.

A county domestic relations office is intended to serve the public and an inflexible rule permitting domestic relations office attorneys in all cases to represent only the first spouse to be assisted by any attorney in the office could operate to limit the availability of assistance to spouses seeking help from the office. Such a rule could also result in some circumstances in the development of a practice whereby persons experiencing marital difficulties might engage in a "race to the office" in order to foreclose assistance to their spouses.

In somewhat similar circumstances the American Bar Association Committee on Professional Responsibility has taken the position that DR 5-105(D) cannot be construed to foreclose a governmental department from holding a specific matter that was previously handled by an attorney in the governmental office when that attorney was in private practice. Formal Opinion 342 (Nov. 24, 1975). In reaching this conclusion, the ABA Committee noted that a contrary interpretation of the disciplinary rule would unreasonably impair the government's ability to function and is unnecessary because the relationships of the lawyers within a government agency are different from those among partners and associates in a law firm: "The salaried government employee does not have the financial interest in the success of departmental representation that is inherent in private practice.…

The channeling of advocacy towards a just result as opposed to vindication of a particular claim lessens the temptation to circumvent the disciplinary rules through the action of associates."

For these reasons, the ABA Committee held that disqualification of all lawyers in a government department was not necessary provided the individual lawyer was screened from any direct or indirect participation in the matter and from discussions with colleagues in the government office concerning the transaction.

Conclusion

It is the conclusion of the Committee that A as an attorney in a county domestic relations office may not prosecute W during or after prosecuting H. However, another attorney in the county domestic relations office may prosecute W provided that (i) A is screened from any direct or indirect participation in the prosecution of W and from discussions with colleagues concerning such prosecution and (ii) appropriate steps are taken to make unavailable to the attorneys in the domestic relations office involved in the prosecution of W all portions of the files of the domestic relations office reflecting confidential information obtained from W with respect to prior proceedings.