Advisory Opinion:
1619
Year Issued:
1995
RPC(s):
RPC 1.7; 3.8(d); 8.4(d)
Subject:
Conflict of interest; prosecuting attorney investigating police officer
The Committee discussed your inquiry regarding the potential conflicts of interest if a prosecutor for [a] Tribe conducts a criminal investigation of a high-ranking Tribe police officer. The Committee was of the opinion that because the employment relationship between a police officer and a prosecutor on its own does not create an attorney-client relationship, there is no inherent conflict of interest under RPC 1.7(a) in a prosecutor investigating a police officer. However, the Committee was of the opinion that there is a potential conflict of interest under the third person clause in RPC 1.7(b), and under RPC 3.8.
Constitutional obligations under the due process clause as well as RPC 3.8(d) and CrR 4.7(a) require a prosecutor to timely disclose all information that may exculpate a defendant. This includes any damaging or potentially damaging information learned about a police officer during an investigation that a defendant could use toward a defense. This duty to disclose information would interfere with the prosecutor's ability to perform an effective investigation. Even if the police officer were never found chargeable, any information that the prosecutor obtained as a result of the investigation might be discoverable by future defendants. This would put the police officer's integrity continually in question, and place the prosecutor in an untenable position.
In addition, due to the close working relationship that necessarily exists between the police officer and prosecutor, appearance of fairness questions are likely to be raised under RPC 8.4(d) and 3.8(d), given the prosecutor's quasi-judicial function and the public trust which rests in the position. These appearance of fairness considerations coupled with the conflict of interest issues might weigh heavily in favor of assigning a special district counsel to investigate the police officer.
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