June 17, 1997
A lawyer who represented a client on an appeal while in private practice, may continue to represent the client after being hired to handle appeals for a county prosecutor's office, where the criminal case against the client was prosecuted in a different county by the Attorney General's office, and where the county prosecutor's office will not appear in the Court of Appeals.
References: MRPC 1.11(c); R-13; RI-4; RI-43; RI-152.
The Attorney General brought criminal charges against a defendant who was located in County 1. The case was tried in County 2. The defendant retained Lawyer A in the criminal action. At that time Lawyer A was in private practice. The circuit court judge dismissed all criminal charges against the defendant and the Attorney General appealed. The defendant then retained Lawyer B (the inquirer) as defense counsel on the appeal. At the time, Lawyer B was also in private practice. Both parties have filed briefs in the Court of Appeals and are awaiting oral arguments. On January 1, Lawyer A became the Chief Prosecuting Attorney for County 1 and hired the inquirer to handle appeals for the prosecutor's office. The inquirer asks whether he/she must withdraw from representing the defendant in the court of appeals.
This issue is governed by MRPC 1.11(c)(1), which states:
"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 non-governmental 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."
Viewed in isolation, the text of the rule would apparently prohibit a lawyer who is now serving as a public officer or employee from participating in any matter in which the lawyer participated personally and substantially while in private practice, regardless of whether the lawyer would be acting for the governmental agency or the private client, and regardless of whether the governmental agency is a party to the matter. However, previous ethics opinions which have interpreted the rule do not interpret it so harshly.
The purpose of Rule 1.11(c) is to "safeguard client loyalty and confidentiality and to preclude exploitation of public office for private advantage." RI-43. These concerns come into play when a lawyer seeks to act on "both sides of the equation," by representing a private defendant and the governmental agency in same matter. In R-13, a lawyer acting as a prosecutor for a tribal court was permitted to represent criminal defendants before other state courts so long as: (1) the lawyer did not defend persons currently under investigation or prosecution in the tribal court; (2) the lawyer did not defend matters in which the lawyer participated personally and substantially as a tribal lawyer unless the client and the government agency consented; and (3) the lawyer did not undertake defense cases which may give rise to violations of tribal law under the jurisdiction of the tribal court prosecutor. The lawyer was not permitted to prosecute in tribal court matters in which the lawyer personally and substantially participated as defense counsel in state courts, or matters which were substantially related and materially adverse to a former defense client absent the former client's consent. Thus, the lawyer in R-13 was only absolutely prohibited from representing a criminal defendant when the lawyer's other client, the governmental agency, was also a party in the case.
That is not the situation in this inquiry. Although the criminal defendant was charged in County 1, the defendant was tried in County 2 by the Attorney General, not by the office of the prosecuting attorney for County 1. Furthermore, it appears that the prosecuting attorney's office for County 1 has not and will not enter an appearance in the Court of Appeals and that the state will continue to be represented by the Attorney General's office. As was noted in RI-4 (interpreting MRPC 1.11(a)), "MRPC 1.11 is triggered by substantial participation 'for the 'matter' as assistant city attorney." See also RI-152, where a former criminal defense lawyer whose trial client was represented by successor counsel on appeal, could not handle the appeal for the state when subsequently elected prosecutor. While the case pending in the court of appeals is clearly a "matter" as defined in MRPC 1.11(d)(1), the inquirer will not be participating in the matter as an assistant prosecuting attorney on behalf of County 1. Therefore MRPC 1.11(c) does not prevent the inquirer from representing the defendant in the Court of Appeals.