Advisory Opinion:
1766
Year Issued:
1997
RPC(s):
RPC 1.6; 1.7(a); 1.7(b); 1.11
Subject:
Conflict of interest; lawyer represents criminal defendants and serves as prosecutor pro tem in same court
[The inquiry concerned] possible conflicts of interest in serving as a misdemeanor defense attorney in local municipal courts while also acting as prosecutor pro tem for two local courts. Your representation is never "in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee". You also ask whether or not there is any prohibition against your representation of a person who has a civil rights claim against one of these same municipalities for which you occasionally serve as prosecutor.
It was the Committee's opinion that your conduct is not controlled by RPC 1.11. The purpose of that rule is to control the conduct of a lawyer who has left public service for private practice. Because you intermittently represent the city as its prosecutor and have the expectation of continuing to do so, you must consider the city to be your client. Consequently, your conduct is controlled by RPC 1.7. Under those provisions, it is a conflict of interest to represent criminal defendants in a municipal court where you are intermittently employed as a prosecutor. However, the conflict can be waived if you comply with the provisions of RPC 1.7(a)(1) and (2). Assuming you could satisfy the same provisions, you could also represent your former client in her civil suit against the city. Depending on the facts of the case, there will be unwaivable conflicts of interest under RPC 1.7(a) and (b) and 1.6.
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