Can a part-time city prosecutor also defend criminal cases and handle civil litigation in state court as a private lawyer?

Plain-English summary

A lawyer who served as prosecutor for a city, handling not only traffic and general criminal cases but also zoning and other ordinance violations, asked when he could represent a private client in a criminal or civil matter. The Disciplinary Commission concluded there would be no ethical impropriety in his defending criminal cases or representing parties in civil litigation in the state courts, subject to several conditions: no municipal police officers are involved, the criminal matters he defends are based solely on alleged violations of state law, the municipality is not involved directly or indirectly in any criminal or civil litigation in which he represents the parties, and, in his capacity as city prosecutor, he had no substantial responsibility in any facet of the matter he undertakes as a private practitioner.

The opinion relied on DR 5-101(C) (a lawyer shall not represent a party after having represented an adverse party or interest in connection with the cause), DR 5-105(A) (declining employment where independent judgment will be adversely affected or would involve differing interests), and DR 9-101(B) (a lawyer shall not accept private employment in a matter in which he had substantial responsibility as a public employee). It followed Grievance Committee Ethics Opinion 10 (1976), which had answered a nearly identical question and had cited with approval ABA Informal Opinion 1285 concerning an assistant city prosecutor defending criminal matters. The Commission reasoned that if a city prosecutor may defend criminal cases where no municipal police officers are involved, the charges rest solely on state law, and the municipality is otherwise uninvolved, there would be even less impropriety in representing parties in civil litigation under the same conditions.

The opinion assumed the lawyer's contract with the city permitted him to engage in the private practice of law. It cautioned that it did not imply that conflicts could never arise in a particular situation that would preclude him from acting, but that the private representation he described would not be unethical per se if the stated guidelines were followed.

Currency note

This opinion was issued in 1982, under the former Alabama Code of Professional Responsibility (DR 5-101, DR 5-105, DR 9-101) and before the Alabama State Bar's January 1, 1991 adoption of the Rules of Professional Conduct and the 2002 Ethics 2000 revisions to the ABA Model Rules. The conflict and former-government-lawyer questions it analyzed are now governed by Rules 1.7 and 1.11. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a part-time city prosecutor take private criminal defense cases?

A: Per the opinion, yes, provided no municipal police officers are involved, the charges rest solely on alleged state-law violations, the municipality is not directly or indirectly involved, and the lawyer had no substantial responsibility for the matter as city prosecutor.

Q: Does the same answer apply to private civil cases?

A: The opinion concluded it does, and reasoned there is even less impropriety in civil representation than in criminal defense where the same conditions are met, because the municipality is not involved.

Q: What is the boundary the opinion drew?

A: The opinion drew the line at municipal involvement and prior responsibility: a matter touching municipal police, a city ordinance the prosecutor enforces, or any facet in which the lawyer had substantial responsibility as city prosecutor is off-limits under DR 9-101(B).

Background and rules framework

The opinion interpreted the former Alabama Code of Professional Responsibility: DR 5-101(C) (representing a party after having represented an adverse party or interest in the cause), DR 5-105(A) (declining employment that would adversely affect independent judgment or involve differing interests), and DR 9-101(B) (no private employment in a matter in which the lawyer had substantial responsibility as a public employee). The successive-conflict and former-government-officer analysis now falls under Rules 1.7 and 1.11.

Citations and references

Rules of Professional Conduct:

• Former Ala. Code of Prof. Resp. DR 5-101(C) (representation adverse to a prior client in the cause); now Model Rule 1.7
• Former Ala. Code of Prof. Resp. DR 5-105(A) (declining employment involving differing interests); now Model Rule 1.7
• Former Ala. Code of Prof. Resp. DR 9-101(B) (no private employment where the lawyer had substantial responsibility as a public employee); now Model Rule 1.11

Other opinions cited:

• Alabama Grievance Committee Ethics Opinion 10 (1976): nearly identical question on an assistant city prosecutor defending criminal matters
• ABA Committee on Ethics and Professional Responsibility Informal Opinion 1285

See also

• AL Ethics Op. 1992-22: a city councilman's partner serving as city prosecutor
• AL Ethics Op. 1993-09: a part-time assistant district attorney's private representation
• AL Ethics Op. 1995-10: a lawyer prosecuting a defendant represented by the same firm

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1982-648/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-82-648.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-82-648

QUESTION:

"Please advise me as to when I could represent a client in a criminal matter and civil matter, so long as I am the prosecutor for the City of [redacted].

I prosecute not only the traffic and other general criminal cases, but also zoning and other ordinance violations."

ANSWER:

There would be no ethical impropriety in your defending criminals in the State courts or representing parties to civil litigation in the State courts if no municipal police officers of the City of [redacted] are involved, the criminal matters which you defend are based solely on alleged violations of state law, the municipality is not involved directly or indirectly in any criminal or civil litigation wherein you represent the parties and in your capacity as prosecutor for the City of [redacted] you had no substantial responsibility in any facet of the matter which you undertake as a private practitioner to represent a party therein whether the same be criminal or civil.

DISCUSSION:

Disciplinary Rule 5-101(C) provides:

"A lawyer shall not represent a party to a cause or his successor after having previously represented an adverse party or interest in connection therewith."

Disciplinary Rule 5-105(A) provides:

"A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C)."

Disciplinary Rule 9-101(B) provides:

"A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee."

In Ethics Opinion 10 (1976) the Grievance Committee answered a question almost identical to the one which you pose. The Grievance Committee cited with approval and followed Informal Opinion 1285 of the American Bar Association Committee on Ethics and Professional Responsibility. This opinion dealt only with an assistant city prosecutor defending defendants in criminal matters. However, we are of the opinion that if a city prosecutor can defend criminal defendants when no municipal police officers are involved, the criminal charges are based solely on alleged violations of state law and the municipality is not otherwise directly or indirectly involved or affected, there would be even less impropriety in representing parties in civil litigation where the same conditions apply.

It is assumed for the purposes of this opinion that your contract with the City of [redacted] permits you to engage in the private practice of law. We do not intend to imply by this opinion that conflicts might not arise in a particular situation which would preclude you from acting as defense counsel in criminal cases or representing either party in civil litigation. However, your acting as private counsel in litigation which you described in your request for opinion would not be unethical per se if the foregoing guidelines are followed.

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