Opinion 666 · December 2016
Opinion 666 — The Successor Opinion
What it is
Texas Bar Ethics Opinion 666 was issued in December 2016 by the Texas Center for Legal Ethics. It addresses a different fact pattern than its predecessor: conflicts of interest for attorneys who are married to each other and appear on opposing sides of a matter.
Official designation
The opinion’s number is, in fact, 666. This is the assigned sequence number in the Texas Center for Legal Ethics opinion series — not a thematic choice. The number is documented and citable.
What it concludes
Opinion 666 carries forward the substantive logic of Opinion 539 and applies it to the new fact pattern. Two attorneys married to each other, appearing on opposing sides, have a documentable conflict driven by the same reciprocal-financial-interest mechanism that Opinion 539 identified. The opinion provides guidance on disclosure and consent under Texas Disciplinary Rules of Professional Conduct.
The operative language
Opinion 666 uses the word “married” throughout. As with Opinion 539’s “spouse,” the formal trigger is a legal marriage. Couples in a domestic partnership, civil union, or long-term cohabiting arrangement that has not been formalized by a marriage certificate are not enumerated.
What the gap looks like, on the face of the text
When Opinions 539 and 666 are read together, the formal review mechanism for attorney-couple conflicts is:
| Couple type | Covered by 539 | Covered by 666 | Trigger fires |
|---|---|---|---|
| Married heterosexual DA + defense attorney | Yes (spouse) | If both attorneys, also yes (married) | Yes |
| Married same-sex DA + defense attorney (post-Obergefell) | Yes (spouse) | If both attorneys, also yes (married) | Yes |
| Unmarried domestic-partner DA + defense attorney | No (not “spouse”) | No (not “married”) | No |
| Engaged couple | Ambiguous | Ambiguous | Probably no |
| Long-term ex-partners with continuing financial entanglement | Not addressed | Not addressed | No |
The third row is the case under examination here. It is the row in which the substantive Opinion-539 reasoning clearly should apply (financial interest exists; impairment of independent judgment exists) but the formal language does not reach.
Open questions
- The drafting record for Opinion 666: who served on the drafting committee, what fact patterns the committee considered, whether unmarried domestic partners were raised and rejected, and whether the language was deliberately confined to “married” or whether the limitation was inadvertent. Resolution method: Texas Center for Legal Ethics committee records.
- Whether the opinion has been cited in subsequent disciplinary proceedings, and if so, whether any cited proceeding involved an unmarried domestic-partner pair (which would force the bar to confront the gap). Resolution method: disciplinary-proceedings public record review.