RI-4

January 5, 1989

SYLLABUS

An assistant city attorney may represent a criminal defendant in a trial court proceeding where:

1. The signing of the complaint and warrant arose during the employment of the assistant city attorney with the city attorney's office; and
2. The assistant city attorney had no personal contact with the defendant or the arresting officer; and
3. The assistant city attorney did not participate in any phase of investigation or prosecution to any substantial degree.

An assistant city attorney may represent a criminal defendant in a trial court proceeding where the attorney participated substantially during the employment with the city attorney's office, with the consent of the government agency.

The law firm of an assistant city attorney may represent a criminal defendant in a trial court proceeding where the assistant city attorney participated substantially during employment with the city attorney's office, provided that the attorney is screened from the matter and the government agency is given notice.

Reference: MRPC 1.11.

TEXT

A law firm which employs a former assistant city attorney who signed the complaint and warrant against that criminal defendant in a misdemeanor case, asks whether the law firm may represent the criminal defendant under a public defender contract for the county.

The former assistant city attorney reviewed a police report and signed a prepared complaint and warrant charging the defendant with the offense of Operating Under the Influence (OUIL). The former assistant city attorney had no contact, personally or verbally, with the arresting officer, did no independent investigation of the facts alleged in the police report, and interviewed no witnesses. Shortly thereafter, the attorney left the employ of the city attorney's office and joined the law firm which has the public defender contract for misdemeanor cases in the county.

The defendant named in the above complaint and warrant requested a public defender and was assigned to the law firm where the former assistant city attorney is now employed. The former assistant city attorney is not involved in the case in any manner; it is being handled by one of the partners. The defendant has been advised of these facts and has nevertheless specifically requested the law firm to continue representation.

MRPC 1.11(a) states:

"Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer 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."

Under this Rule the "matter" to be defended by the law firm must be the same "matter" which arose while the lawyer was performing the duties of assistant city attorney. Based upon the information made available, the Committee concludes that the present criminal proceedings and the firm's representation of defendant involve the same "matter" which was addressed by the assistant city attorney at the time of employment with that office.

MRPC 1.11 is triggered by "substantial participation" for the "matter" as assistant city attorney. The facts given state the lawyer had no contact with the arresting officer or the defendant, did not perform an independent investigation of the facts alleged in the police report, and did not interview witnesses. The Comment to MRPC 1.11 states:

"Where the successive clients are a public agency and a private client, the risk exists that power or discretion vested in public authority might be used for the special benefit of a private client. A lawyer should not be in a position where benefits to a private client might affect performance of the lawyer's professional functions on behalf of the public authority. Also, unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service. However, the rules governing lawyers presently or formerly employed by a governmental agency should not be so restrictive as to inhibit transfer of employment to and from the government."

Since it appears that the lawyer performed only perfunctory approval of the complaint and warrant in question, the lawyer did not have "substantial participation" in the "matter" as assistant city attorney. Therefore, the consent of the government agency prior to the lawyer representing the defendant would not be required.

Even if the lawyer "participated substantially" in the "matter," the law firm could still undertake representation of defendant. MRPC 1.11 requires that the lawyer be screened from the "matter" and that notice be given to the government agency.

In summary, it is the Committee's opinion that the participation of the lawyer in the matter was not "substantial participation" requiring the consent of the government agency prior to the lawyer's representation of defendant, and that even in an instance of "substantial participation" the law firm could represent defendant if the lawyer is screened from the case and the government agency is given notice.