August 25, 1982
A former chief assistant prosecutor may represent a criminal defendant in a trial court proceeding where:
- The criminal investigation arose or was pending during the chief assistant prosecutor's employment with the prosecutor's office; and
- The chief assistant prosecutor had no personal contact with the defendant; and
- Did not participate in any phase of the investigation or prosecution in any substantial degree;
- Did not acquire knowledge of the state's case during employment.
References: DR 9-101(B).
Inquiry has been made regarding the following:
"Can a former chief assistant prosecutor represent an indigent criminal defendant by appointment of the Circuit Court where the matter arose during tenure with the Prosecutor's office?"
The Committee is further advised that although the inquirer does not recall speaking with any police officers about this particular incident, it is entirely possible that the inquirer may have discussed the matter with an officer from a particular police agency.
The Canon and Disciplinary Rules governing this inquiry are Canon 9 and DR 9-101(B) and respectively, state:
"A lawyer should avoid even the appearance of professional impropriety." Canon 9.
"A lawyer shall not accept private employment in a matter in which the lawyer had substantial responsibility while a public employee." DR 9-101(B).
The American Bar Association Committee on Ethics and Professional Responsibility extensively interpreted DR 9-101(B) in its Formal Opinion 342. This Committee adopted 342 in form and substance as the opinion of this committee in CI-271. This committee has subsequently adhered to C Opinion 342 in CI-314 and CI-372.
Under the facts described here, it is believed that two questions must be addressed. First, whether the matter which you propose to accept employment is the same "matter" which was under consideration by the Prosecutor's Office at the time of your employment with that office. Our first inquiry must, therefore, be answered in the affirmative.
The second inquiry does not admit of such a ready response. You had no personal contact with the defendant during the criminal prosecution nor any involvement with the issuance of the warrant during your employment as Chief Assistant Prosecutor. You do state however, that ". . . it is entirely possible . . ." that you discussed the case with law enforcement authorities. The question arises, therefore, whether or not your employment involved "substantial responsibility" in the same "matter."
Substantial responsibility as discussed in ABA Opinion 342 and adopted by this Committee:
". . . envisages a much closer and more direct relationship than that of a mere perfunctory approval or disapproval of the matter in question. It contemplates a responsibility requiring the official to become personally involved to an important, material degree, in the investigative or deliberative processes regarding the transactions or facts in question.
". . . for it is sufficient that he or she had such a heavy responsibility for the matter in question that it is unlikely he or she did not become personally and substantially involved in the investigative or deliberative processes regarding that matter. With a responsibility so strong and compelling that he or she probable became involved in the investigative or decisional processes, a lawyer upon leaving the government service should not represent another in regard to that matter."
It appears from the facts presented, the inquirer was not involved nor did not have the responsibility to become involved in any substantial degree in prosecutorial process of the defendant's case. The Committee cannot, however, conclude on the facts permitted, whether or not you actually acquired information or became knowledgeable of the facts upon which the state bases its case through involvement in the investigative or deliberative stage in any substantial degree. If you did acquire such information and you were substantially involved in the case prior to the warrant's issuance, then our response to the second question must, likewise, be in the affirmative. Acceptance of employment under the circumstances would, therefore, be violative of DR 9-101(B).
While this opinion has concerned itself directly with the interpretation and application of DR 9-101(B), it is appropriate to point out the applicable ethical dimension of professional responsibility: The client should be advised of any circumstances that might cause a question to be raised concerning the propriety of your undertaking his or her representation. Further, all doubts should be resolved against the acceptance of questionable employment. See EC 5-15 and EC 5-16. Consequently, any doubts that you might have regarding the extent of your previous involvement with the defendant's case should be resolved in against continuing in the case.
In summary, a former Chief Assistant Prosecutor may represent a criminal defendant in a trial court proceeding where:
- The criminal investigation arose or was pending during the Chief Assistant Prosecutor's employment with the prosecutor's office; and
- The Chief Assistant Prosecutor had no personal contact with the defendant; and
- Did not participate in any phase of the investigation or prosecution in any substantial degree; and
- Did not acquire knowledge of the state's case during his or employment.