OPINION 172
March 1958

PROFESSIONAL COLLEAGUES - ENCROACHING ON PRACTICE OF ANOTHER - When an attorney has been consulted by a client and learns that other counsel has already been engaged, the attorney should withdraw upon the request of the prior counsel.

DIVISION OF FEES - PUBLIC OFFICER AND PRIVATE PRACTITIONER - When an attorney splits his fees with a county attorney which have been earned from civil employment referred to the attorney by the county attorney as an incident to criminal proceedings he has handled, both attorneys act improperly.

Canons 7 31.

Question

An assistant county attorney filed a complaint against a man charging him with aggravated assault with a motor vehicle. The party who was injured by the motor vehicle was not at fault. The injured party asked the assistant county attorney, while talking to him about the facts of the case if he knew a good lawyer to handle his claim for damages against the driver of the motor vehicle. At the time he made such inquiry of the assistant county attorney, the injured party had already retained a lawyer. The assistant county attorney told the injured party that he would like to recommend a lawyer friend of his and then called in his lawyer friend. The lawyer friend of the assistant county attorney then took the injured party to his office and at that time the injured party told the lawyer who was called in by the assistant county attorney that he had already retained another lawyer. The lawyer who was called in by the assistant county attorney then called the other lawyer and confirmed the fact that the injured party had already retained the other lawyer. But the lawyer who was called in by the assistant county attorney refused to leave the case and when the claim was finally settled such lawyer demanded more than one-half of the fee, giving as his reason that he had to give the assistant county attorney $200 because the assistant county attorney referred the business to him. He stated that he split fees with all the members of the District and County Attorneys’ offices on civil business referred to him by them which they could not handle by reason of their official business and their connection with criminal cases out of which the civil business arose.

1. Did the lawyer who was called in by the assistant county attorney violate any Canons of Ethics by refusing to withdraw from the matter after he was advised that the injured party had already retained another lawyer?

2. Was there a violation of any of the Canons of Ethics by the payment of part of the fee to the assistant county attorney and his acceptance of such payment?

Opinion

1. The lawyer who was called in by the assistant county attorney violated Canon No. 7 of the State Bar of Texas when he refused to leave the case after he was told that the injured party had already retained a lawyer and apparently was requested not to represent the injured party. If the first lawyer retained by the injured party had no objection to the second lawyer being in the matter with him, there would be no violation of Canon No.7 by the second lawyer, but such is not the case submitted in the fact situation presented to the committee. (9-0)

2. The splitting of part of the fee between the assistant county attorney and the lawyer which he called into the matter is a violation of Canon No.31 by both the assistant county attorney and the lawyer that he called into the matter. It is improper for public officials to use their office to take advantage of legal representations coming through that that office in any official way. (8-1)