If a part-time assistant DA once represented a parent, can the rest of the DA's office still prosecute that parent for child-support arrears?

Plain-English summary

A district attorney's office contracted with the Department of Human Resources to handle all Title IV child-support matters had a full-time DA and four part-time assistant DAs. The part-time assistant who ran the Child Support Unit asked, in four questions, whether his own disqualification from a case (because of his prior representation of the parent now facing a child-support action) would be imputed to the rest of the office, and whether the affected parties could waive any conflict.

The Disciplinary Commission concluded that whether the personal disqualification is imputed depends on its nature. If the assistant had represented the defendant in a substantially related matter, or in a way from which it might reasonably be inferred that he obtained confidences or secrets usable against the defendant, then he and everyone associated with him in practice, including the district attorney and the other part-time assistants, would be vicariously disqualified, and a special prosecutor would seem to be indicated. Because the possible grounds vary, the Commission gave no absolute answer, but said it is reasonable, and required by the rules to assume, that in most instances the disqualification would flow throughout the office.

As to waiver, the Commission concluded it might suffice on a case-by-case basis depending on the nature of the disqualification, the sophistication of the party granting it, and the nature of the action, though it generally disfavors waiver in criminal cases because of the risk of creating reversible error or interfering with the administration of justice. On the specific example posed (one part-time assistant had represented the parent in the underlying divorce, the same matter), the Commission concluded attorneys associated with that assistant could not take a position adverse to the former client in a substantially related matter, that DR 5-105(C) imposes a very high conflict standard in domestic-relations and child-support cases, and that waiver could not cure such a substantial conflict; a special prosecutor might again be advisable.

Currency note

This opinion was issued in 1990, under the former Alabama Code of Professional Responsibility (DR 5-105) 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. Duties to former clients are now in Rule 1.9, imputation of conflicts in Rule 1.10, and the special rules for current and former government lawyers in Rule 1.11, which treats imputation within a government office differently than within a private firm. 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: If one assistant DA is conflicted out, is the whole office disqualified?

A: Per the opinion, generally yes where the assistant represented the defendant in a substantially related matter or could have obtained usable confidences; the Commission said the disqualification would, in most instances, flow throughout the office, and a special prosecutor would be indicated.

Q: Can the parties waive the conflict so the office can proceed?

A: The opinion concluded waiver might cure some conflicts case by case, depending on the nature of the disqualification, the party's sophistication, and the action, but the Commission generally disfavors waiver in criminal cases.

Q: What about a conflict in the very same matter, like the underlying divorce?

A: The opinion concluded that where an associated attorney represented the defendant in the same matter, the high conflict standard in domestic-relations cases means waiver cannot cure it, and a special prosecutor might be advisable.

Background and rules framework

The opinion applied former DR 5-105 of the Alabama Code, including its heightened conflict standard in domestic-relations, custody, alimony, and child-support cases, and the principle that one lawyer's disqualification is imputed to those associated in practice. These subjects are now addressed by Rule 1.9 (former clients), Rule 1.10 (imputation in a firm), and Rule 1.11 (current and former government lawyers).

Citations and references

Rules of Professional Conduct:

• Former Ala. Code of Prof. Resp. DR 5-105 (conflicts and imputed disqualification; heightened standard in domestic-relations matters); now Model Rules 1.9, 1.10, and 1.11

See also

• AL Ethics Op. 1991-44: a DA's office prosecuting a defendant and screening of a conflicted assistant
• AL Ethics Op. 1993-09: a part-time assistant district attorney's private representation
• AL Ethics Op. 1990-03: taking a matter adverse to a former client
• RI EAP Op. 2005-06: A Former Public Defender's Conflict Imputes to the New Firm Under Rule 1.10(b); Only the Former Client's Waiver Cures It
• RI EAP Op. 2009-01: Former Part-Time Municipal Assistant Solicitor May Represent Private Clients Against the Municipality

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1990-05/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-90-05.pdf

Original opinion text

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

ETHICS OPINION

RO-90-05

QUESTION:

"FACTS:

The [redacted] County District Attorney's Office is under contract with the Department of Human Resources to handle all child support matters under Title IV of the Social Security Act. The office has a full-time district attorney and four part-time assistant district attorneys of which I handle the Child Support Unit.

QUESTION ONE:

Is it ethical for another part-time district attorney and/or the district attorney to represent the State of Alabama in an action which I can't handle due to my past representation of the party against whom the child support action is instigated?

QUESTION TWO:

If the answer to Question One is no, can the parties, if the conflict is made known to them, waive any potential conflict where the district attorney and/or another part-time assistant district attorney can proceed with representing the State?

QUESTION THREE:

Is it ethical for the part-time assistant district attorney, who handles Title IV cases, to handle those cases in which another part-timer represented the party against whom the child support action is instigated, in the underlining divorce action?

Example — Attorney A, a part-time assistant district attorney, represents John Smith in a divorce action. After the divorce Kathy Smith, the ex-wife who has custody of the child(ren), obtains the services of the Department of Human Resources for help in enforcing her child support order. Can Attorney B, also a part-time assistant district attorney who handles child support (Title IV) cases, represent the State of Alabama in an action against John Smith for collection of past due support?

QUESTION FOUR:

If the answer to Question Three is no, can the parties, if the conflict is made known to them, waive any potential conflict, so that the part-time assistant district attorney, who handles Title IV cases, may proceed as the attorney for the State?"

ANSWER QUESTION ONE:

Your query is whether your personal disqualification can be vicariously attributed to the district attorney or other part-time district attorneys in child support prosecutions. The answer to that depends in large part on the nature of the disqualification. If you represented a defendant in a substantially related matter, or if you represented a defendant in such fashion that it might be reasonably inferred that you obtained confidences or secrets of that defendant that could be used against that defendant, or for the benefit of third parties, in any subsequent representation, then you are disqualified and anyone associated with you in the practice of law, including the district attorney and the part-time district attorneys would also be vicariously disqualified. Under those circumstances a special prosecutor would seem to be indicated. Since it is impossible to speculate as to all the possible grounds for disqualification no absolute answer can be given to this question but it is reasonable to assume, and required by the rules to assume, that in most instances the disqualification would flow throughout the office.

ANSWER QUESTION TWO:

On a case by case basis waiver might be sufficient to cure any conflict of interest that would prevent your participation in the matter at hand. Once again this would depend upon the nature of the disqualification, the sophistication of the party granting the waiver and the nature of the action being prosecuted. In criminal cases the Commission generally does not favor waiver because of the possibility of inadvertently creating reversable error or otherwise interfering with the administration of justice and the perception of impeding effective and independent representation of all parties.

ANSWER QUESTION THREE:

There is a substantial possibility of the use or misuse of confidential information in the example cited with your question three and on those facts we would opine that any attorneys associated with Attorney A in the practice of law including other assistant district attorneys, may not take a position adverse to John Smith in a substantially related matter.

ANSWER QUESTION FOUR:

Disciplinary Rule 5-105(C) imposes a very high conflict of interest standard in domestic relation cases and in cases involving custody of children, alimony or child support. Accordingly, and in recognition of that high standard, it is our opinion that waiver would not be effective on the facts upon which this question is based. It is noted that Attorney A, a part-time district attorney, had an attorney/client relationship with John Smith in not just a substantially related matter but in the same matter. In the opinion of the Commission it would be inappropriate for an attorney now representing the State and associated as a part-time assistant district attorney with Attorney A to take on a directly adverse interest to Attorney A's former client in the same, or a substantially related, matter. Waiver, in our opinion, cannot cure such a substantial conflict. There are also problems with creating an appearance of impropriety, all suggesting to the Commission that, as in Question One, a special prosecutor might be advisable.

AWJ/vf

3/12/90