Opinion 1773

Facts Presented; The prosecutor's office has employed former public defense lawyers who find themselves making charging decisions and prosecuting former clients.

Questions Presented: (1) Does a conflict of interest prohibit a prosecuting attorney from prosecuting a former client for criminal conduct; and, (2) If a conflict of interest does exist, may the prosecutor participate in any aspect of the criminal case against the former client; and/or is the entire prosecuting attorney's office disqualified from prosecuting the former client?

Applicable Rules: RPC 1.6, 1.8(b). 1.9, 1.10, 1.11

RPC Committee Opinion: A lawyer is prohibited from prosecuting a former client if the two matters are substantially related or if confidences were revealed during the prior representation. If a lawyer is disqualified due to a conflict, then another lawyer in the office may be reassigned so long as the disqualified lawyer is totally separated from all aspects of the case and relinquishes all control, involvement and authority over the case. The entire prosecuting attorney's office is disqualified when the death penalty is being sought, when the prosecuting attorney personally represented the defendant in the same or a substantially related proceeding or when other facts require disqualification under the RPCs. A conflict of interest might be waived under RPC 1.9(a) and 1.8(b) if the accused gives written consent following full disclosure and RPC 1.6 is complied with.

The Committee does not express an opinion on the question of law regarding whether an accused may consent without advice of independent counsel or whether other constitutional rights may be adversely affected in the process of consent and disclosure. The inquiring lawyer should be advised not to violate or permit violation of RPC 1.6, 1.9 and 1.11, and to exercise caution by assigning cases to a prosecutor free of risk of a potential conflict of interest involving a former client. The Committee also refers the inquirer to RPC 1.10. The Committee does not express an opinion on legal questions.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.