- - Wednesday, April 16, 2014

Texas gubernatorial candidate Wendy Davis is not the first lawyer faced with conflict-of-interest allegations, but her decision as a state senator to represent the North Texas Tollway Authority while voting on toll-related legislation could raise eyebrows at the state bar association or the ethics commission.

Ms. Davis’ situation illuminates a common problem that elected officials may face because so many of them are also attorneys and cannot afford to abandon their law practices while in public office. The Democratic state senator garnered attention in June, when she conducted a filibuster to delay a vote on abortion legislation.

Ms. Davis opened her law firm in 2010 with Brian Newby, Gov. Rick Perry’s former chief of staff, to help companies trying to do business with public entities. She initially insisted she would not have to recuse herself from state Senate votes, which is required by the Texas Constitution when potential conflicts of interest arise.

But articles by Dallas Morning News investigative reporter Wayne Slater note that she has not done so.

“My stories clearly show that she has voted in cases that on the face of them are conflicts of interest,” Mr. Slater told The Washington Times via telephone. “She has voted on legislation affecting her client, who pays her, and that’s a fact. The question is whether that’s illegal, and we certainly haven’t said that. It’s something of a gray area as to what’s permitted.”

That gray area means that many politicians’ voting records might demonstrate a conflict of interest, but that does not mean their votes are indeed illegal.

“It has long been interpreted that, if you vote on legislation that affects a whole class of people or affects everyone similarly situated in that industry, then it may be a conflict of interest, but it’s not necessarily against the law,” Mr. Slater said.

Ms. Davis’ potential problems may not fall under Texas criminal law, but rather the Texas State Bar, which monitors attorney conduct, and the Texas Ethics Commission, which polices the activities of paid public officials.

Potential conflicts of interest can spell trouble for attorneys and politicians because even the appearance of impropriety can trigger an investigation.

At the start of her law firm, Ms. Davis told the Fort Worth Star-Telegram that there would not be any possibility of conflicts, saying: “I will not represent anyone on any issues that come before the state.”

Ms. Davis’ current woes stem from her representation of the North Texas Tollway Authority (NTTA) while also voting for toll-collection legislation backed by the authority. In one instance, she reportedly billed the authority for condemnation work on the same day she voted for toll legislation.

In 2011, she said that her work for the toll authority had “absolutely no conflict whatsoever.”

The Dallas Morning News countered that point in an editorial Monday: “It’s one thing for an attorney to aggressively represent a client and something else when that lawyer sits on the powerful Senate Transportation Committee. A bureaucrat’s dilemma: Is that angry caller Wendy Davis, state senator, or Wendy Davis, NTTA attorney?”

Rule 1.06 of the Texas Disciplinary Bar Rules of Conduct states that “a lawyer shall not represent a person if representation of that person … reasonably appears to become adversely limited by the lawyer’s or law firm’s responsibilities to another client or to a third person or by the lawyer’s or law firm’s own interest.

Rule 1.10, which covers “successive government and private employment,” states: “Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not … Negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially.”

Mr. Slater expressed ambivalence about whether Ms. Davis’s activities will become problematic for her.

“To be fair, it isn’t uncommon for our legislators to have another job because they are not paid very much for what they do,” Mr. Slater said. “There’s a lot of this where you have legislatures engaged in some industry while also serving the state as public officials.”

Jeffrey Scott Shapiro is a legal analyst for The Washington Times.

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