OPINION 497
August 1994

Question Presented

  1. May Attorney X, while serving as a city commissioner on the city commission of a home-rule Texas city, represent persons charged with criminal offenses in the county and district courts where the city police department participates in the investigation and/or arrest of the defendant? May Attorney Y, his law partner, represent such persons?
  2. May Attorney X represent persons charged with criminal offenses in the county and district courts where members of the city police department are victims (i.e., assault on a peace officer)? May Attorney Y represent such persons?
  3. May Attorney X represent persons charged with criminal offenses in the county and district courts where the arrest and/or search warrant in the case is issued by the city judge? May Attorney Y represent such persons?

Facts

Attorney X is a partner in a two-person firm in a small Texas city. Attorney X also serves as a city commissioner on the city commission of this same home-rule Texas city. The city has a city manager form of government. The city commission hires only the city manager, city judge, and city attorney. All other city positions are filled by the city manager under the city's charter. The city commission does set the police department budget and appoint members to the civil service commission who hear police disciplinary appeals, but has no control or input into the police disciplinary appeals process other than the confirmation of appointments to the civil service commission. Attorney X and his partner Attorney Y have a criminal and civil trial practice and take criminal cases both on a retained and court-appointed basis.

Discussion

The applicable rules of the Texas Disciplinary Rules of Professional Conduct which govern this situation are DRs 1.06(b)(2), 1.06(c)(2) and 1.06(f).

Rule 1.06(b)(2) prohibits the representation of a person if the representation reasonably appears to be or becomes adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's law firm's own interests.

Although Attorney X does not exercise control over the day to day operations of the city police department, as a City commissioner, he appoints the city manager, who does ultimately direct the activities of the police department. Certainly, the actions of police officers within a city reflect upon the city commissioners. By representing a person charged with criminal offenses where the city police department participates in the investigation and/or arrest of the defendant, or where the police officers are victims of a crime, Attorney X places himself in a conflict between protecting the city's (and since he is a commissioner, his) interests and in protecting the interests of his client. This situation would also place the police officers in the awkward position of performing their job duties while dealing with a city commissioner who is acting as an attorney in the case.

As a city commissioner, Attorney X exercises even more control over the city judge than he does over the police officers. The city commission actually hires the city judge. The actions of the city judge in executing the arrest and/or search warrant, and any other action taken by the judge would necessarily affect the welfare of the Attorney X's client. However, if the judge did not perform his job properly, the welfare of the city, and hence that of the city commission which is the personal interest of Attorney X, would be affected.

A similar issue was addressed in Ethics Opinion 429, wherein it was decided that a part-time associate city judge may not represent a person accused of a crime where the police in that city are or may be potential witnesses in the trial of that case.

Attorney X is a public officer, and, or such, is held to a high standard of integrity (Comment 7, Rule 8.04). Having an attorney who is a city commissioner involved in representation of criminal defendants in which employees of the city are involved creates a conflict between the client's interests and city's interests as well as the attorney's own interests. Such representation violates Disciplinary Rule 1.06(b)(2). Further, since Attorney X may not represent these criminal defendants, neither can his partner, Attorney Y. See DR 1.06(f).

However, DR 1.06(c) provides for the affected parties to consent to such representation. If lawyer X believes that the representation of his client will not be materially affected by his service as a city commissioner (and vice versa), and both the client and the city consent to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any, such representation would not be in violation of the disciplinary rules.

Conclusion

The representation of a private client by Attorney X, who is also a city commissioner, and Attorney Y, the law partner of Attorney X, in any of the three proposed situations would be a violation of DR 1.06(b), unless all parties give appropriate consent after consultation and full disclosure pursuant to DR 1.06(c).