November 3, 1993
When a lawyer is designated special assistant attorney general to represent a state department for a particular matter, other members of the lawyer's firm are not per se disqualified from representing clients against other state departments or from appearing in matters in which members of the Office of the Attorney General appear.
References: MRPC 1.7, 1.10(a), 1.11; R-13.
A lawyer has been designated special assistant attorney general to represent the state Department of Social Services [DSS]. The lawyer asks about ethical conflicts when a member of the lawyer's firm appears in criminal prosecutions that involve other departments of the Attorney General, such as licensing and regulation. The special assistant attorney general asks whether DSS must consent in such cases.
We have opined that prosecutors are not per se prohibited from engaging in criminal defense work as long as ethics rules are followed. R-13. The fact that a prosecutor represents the state in criminal prosecutions does not disqualify the prosecutor from "opposing" the state by representing criminal defendants. The mere fact that a lawyer has been designated a special assistant attorney general does not make the lawyer a part of the Attorney General's "law firm" (see Rule 1.0 Terminology), for purposes of imputed disqualification whenever other lawyers of the Office of the Attorney General appear in cases.
MRPC 1.11(a) prohibits a member of the lawyer's firm from representing a private client in connection with a matter in which the special assistant attorney general formerly participated personally and substantially, unless the special assistant attorney general is screened from any participation in the matter and is apportioned no part of the fee, and written notice is promptly given to DSS to enable it to ascertain compliance with the rule. MRPC 1.7 would prohibit the inquirer from undertaking representation directly adverse to DSS or representation which would be materially limited by duties to DSS, unless the provisions of MRPC 1.7(a)(1) and (2) or 1.7(b)(1) and (2), respectively, are satisfied. If the inquirer is disqualified, other members of the inquirer's firm would be imputedly disqualified pursuant to MRPC 1.10(a).
Without a particular fact situation to which to apply the ethics rules, we cannot give further guidance.