Opinion 382
Question Presented
A. Is it proper for an attorney who is Mayor or the member of a City Council of a City to:
- Practice in the Municipal Court including getting bonds set by the Judge of such court.
- File an appeal in Municipal Court for the purpose of obtaining a trial de novo of the same cause in the County Court and represent a defendant on appeal of such criminal case.
- Represent a defendant in a criminal case initiated by the Police Department of the City where the Police officer will be a material adverse witness against such defendant.
- In a civil case represent a party with an interest adverse to the City.
- Represent an adverse interest in a civil case instituted by an official of the City in the course of his official duty where some agent, servant or employee of the City acting in the course of official duties will be a material witness in the prosecution or defense of such case.
- Represent a defendant in a criminal case instituted by another agency where a Police officer acting in the course of his official duties will be a witness for the prosecution?
B. Is it proper for a partner or an associate of a Mayor or a member of the City Council to engage in any of the above acts prohibited in Question (A) above? C. May a City enact legislation by ordinance which in its effect upon attorneys who are officials or employees of the City would be more stringent than the Code of Professional Responsibility of the State Bar of Texas?
CITY OFFICIALS - CONFLICT OF INTEREST
Canons 5, 8 & 9
"A lawyer should exercise independent professional judgment on behalf of a client" (Canon 5). "The professional judgment of a lawyer should be exercised within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client" (EC 5-1).
"A lawyer who holds public office shall not use his public position to influence, or attempt to influence a tribunal to act in favor of himself or of a client" (DR 8-101) (A) (2). "A lawyer should avoid even the appearance of professional impropriety" (Canon 9). "Continuance of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our system and in the legal profession" (ED 9-1). "A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee" (DR 9-101) (b).
Based on the above as well as our prior Opinions No. 82 and No. 272, also Colorado Ethics Opinion No. 18, dated January 20, 1969, also 38 Mich. S.B.J. 171 and Oregon State Bar Ethics Opinion No. 24 we answer Question (A) (1) through (6) that such acts are not proper, except under (A) (6) such is permissible if there are other officers and/or witnesses that can testify to the same facts as the City Police Officer.
Based on the above as well as our prior Opinions No. 197 and No. 272, and Virginia State Bar Ethics Opinion 136, dated November 27, 1964, we answer that where the official should not perform such acts, then his partner or associate should not.
When not in conflict with its Charter, State law or Federal law, a City may prescribe by ordinance additional conduct requirements for the members of its City Council and its Mayor (See 39 Tex. Juris 2nd 578 and RS Art. 1011).
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 382 (1975)