December 28, 1995
A judge may consider bids to provide legal services to indigent persons from former assistant prosecutors.
A former assistant prosecutor may generally undertake representation of indigent persons in felony, paternity and probation matters if:
(a) the private matter is not in connection with a matter in which the lawyer participated personally and substantially as a prosecutor, unless the prosecutor's office consents;
(b) the lawyer has acquired no confidential government information about a person which could be used to the material disadvantage of the person in the representation of a client whose interests are adverse to the person.
References: MRPC 1.11(a) and (b); R-13; RI-4.
A trial judge considering bids from lawyers to represent indigent persons regarding felony criminal, paternity, felony case probation and investigatory lineups, has received proposals from current full-time assistant prosecutors who each intend to resign if their proposal is accepted. The judge asks what restrictions apply to former assistant prosecuting attorneys appointed to such matters.
The restrictions on lawyer-client relationships caused by successive government and private employment are set forth in MRPC 1.11 which states:
"(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the layer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, unless:
"(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
"(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
"(b) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person, acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.
"(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:
"(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter; or
"(2) negotiate for private employment with any person who is involved as a party or as an attorney for a party in a matter in which the layer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer, or arbitrator may negotiate for private employment in accordance with Rule 1,12(b).
"(d) As used in this rule, the term "matter" includes:
"(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties; and
"(2) any other matter covered by the conflict of interest rules of the appropriate government agency.
"(e) As used in this rule, the term "confidential government information" means information that has been obtained under government authority and that, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and that is not otherwise available to the public."
In R-13 we determined that under current ethics rules a prosecutor was not per se prohibited from performing defense work concurrently with prosecutorial duties. The principles of MRPC 1.11 apply to chart the course for the lawyer in handling private and public work.
In RI-4, this Committee considered whether a law firm which employed a former assistant city attorney could represent a criminal defendant under a public defender contract. The former city attorney had reviewed a police report and authorized a warrant, but did not perform an independent investigation of the facts nor interview witnesses. The Committee concluded that the lawyer had performed only perfunctory duties and did not have "substantial participation" in the matter as an assistant city attorney. Accordingly, the law firm employing the former prosecuting official could undertake representation of the defendant without further conditions being fulfilled.
The purpose of restricting the future employment of government lawyers is to maintain the integrity of the public authority without unreasonably inhibiting transfers of employment from the government. The Comment to MRPC 1.11 states:
". . . a lawyer should not be in a position where benefits to a private client may affect performance of the lawyer's professional functions on behalf of the public authority."
As this restriction is intended to protect the public authority, the appropriate government agency may consent to such representation after consultation. Such consent would permit a lawyer, formerly employed as an assistant prosecuting attorney, to represent a indigent client in matters where the lawyer participated substantially as an assistant prosecutor, unless such prior participation involved confidential government information which could be used to the material disadvantage of another person. MRPC 1.11(b).
In conclusion, a former assistant prosecutor must always refrain from representing a client when the lawyer possesses potentially harmful, confidential government information about another person who has an interest adverse to the prospective client. A former assistant prosecuting attorney may otherwise represent a client if the lawyer did not have substantial participation in the matter as a government lawyer. A former assistant prosecuting attorney may represent a defendant even though the lawyer had substantial participation in the matter as assistant prosecutor, if the office of prosecuting attorney consents after consultation.