“Texas Lawyer Can Migrate Conflicts from Public Work at Old Firm” —

• “A Texas lawyer who works for public entities at a private firm will create conflicts of interest for other attorneys if he moves to another firm that is routinely in opposition to those public entities, the State Bar of Texas said.”
• “The bar’s Professional Ethics Committee was asked if a lawyer who regularly represents municipalities can join an adverse firm without creating a conflict for other attorneys at the new firm. Secondarily, the committee was presented a question about whether the public entities’ open meetings and records could help avoid conflicts.”
• “The committee said in a February opinion that, under Rule 1.09 of the Texas Disciplinary Rules of Professional Conduct, a migrating lawyer is prohibited from representing any client if the matter is adverse to a client the lawyer personally represented before in related matters. If the migrating lawyer is personally conflicted under Rule 1.09, the committee said, ‘all lawyers in the hiring law firm will share the same conflict while the migrating lawyer remains in the firm.'”
• “The committee also rejected the notion that the ‘generally known’ exception to a lawyer’s confidentiality obligations under Rule 1.05 would allow the hiring firm to avoid the migrating lawyer’s conflicts because of the public entities’ generally open meetings and records.”
• The opinion: Texas Bar Ethics Advisory Comm., Op. No. 693, 02/22

“Ethics Forum: Questions and Answers on Professional Responsibility” —

• “I have been contacted by my state representative to represent him in a challenge to his election opponent once the circulation period is finished. The challenge will not be brought by him, but brought by a registered voter in his district. Who do I represent?”
• “Although the state representative had asked you to bring the challenge and perhaps is paying for it, the person represented is the voter whose name is going to appear on the petition to challenge the nominating petition of the opponent of the state rep.”
• “At times, there can be differences or conflicts between the person bringing the challenge and the person paying the fee.”
• “Despite the fact that the petitioner has a very limited role other than being the registered voter that is needed to bring these challenges, this person is still the client. It is probably a good idea to have a fee letter under Rule 1.5(b). The letter would indicate who is paying, but also note that the lawyer represents them, not the political people who asked them to do this challenge. Also, the election might reflect that there is a waiver of any attorney-client privilege so, at least, the matters can be discussed with the person paying.”
• “There still can be potential conflicts in this situation. One potential conflict could be if the state rep wants the matter to be withdrawn, but the person bringing the challenge wants it to continue. There could also be a conflict if there is a difference of opinion as to whether an appeal should be taken if the challenge is initially denied.”
• “A real conflict could arise if there are sanctions. In the Election Code under 25 P.S. 2937, costs and sanctions can be imposed, though it is rarely done. The person who would be sanctioned would not be that state rep who had the initial idea for the challenge, but it would be the individual voter who had agreed to do so. That could create a problem if the state rep wants the matter pursued even though it was lost below, but the voter may not want to, or may have some concern about sanctions going against them. This would create a real conflict.”
• “Therefore, there could be a real conflict in these situations if one is not careful. Every lawyer should be aware of the potential conflict and who they represent in these election cases.”