Can a lawyer who is now an assistant district attorney represent himself pro se in a civil case filed against him personally?

Plain-English summary

A lawyer who had practiced privately in Mobile, then became a full-time assistant district attorney, was sued personally (along with the firm he had been associated with) under the Fair Debt Collection Practices Act over a collection matter he had handled in private practice. He asked whether he could represent himself, pro se, in that action, intending only to represent himself and not to be involved in any other legal representation.

The opinion concluded that he was entitled to represent himself pro se, just as any other individual litigant. It reasoned that a lawyer-litigant has the same right as any other individual to self-representation, citing Wolfram's Modern Legal Ethics and case law.

The opinion noted that Code of Alabama section 12-17-184(11) prohibits district attorneys and assistant district attorneys from practicing law, directly or indirectly, except in the discharge of their official duties. It observed that the statute was, in all probability, never intended to bar an assistant district attorney from representing himself, but concluded that whether the statute reached self-representation was a legal question beyond the Commission's authority to decide.

Currency note

This opinion was issued in 1991, under the Alabama Rules of Professional Conduct (adopted January 1, 1991) and before the 2002 Ethics 2000 revisions to the ABA Model Rules. Subsequent rule amendments, statutory changes, or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules and statutes before relying on any specific rule, statute, or requirement mentioned here.

Common questions

Q: Can an Alabama lawyer represent himself pro se in a case against him personally?

A: The opinion concluded yes. A lawyer-litigant has the same right as any other individual to represent himself pro se.

Q: Does a statute barring prosecutors from outside practice prevent self-representation?

A: The opinion noted that Code of Alabama section 12-17-184(11) bars district attorneys from practicing law except in their official duties, said the statute was probably not intended to bar self-representation, but concluded that whether it does is a legal question outside the Commission's authority.

Background and rules framework

The opinion did not turn on a numbered Rule of Professional Conduct. It rested on the general principle that a lawyer who is a party has the same right to appear pro se as any other litigant, and it flagged a statutory practice restriction on prosecutors (Code of Alabama section 12-17-184(11)) as a question of law it could not resolve.

Citations and references

Statutes:

• Code of Alabama section 12-17-184(11) (district attorneys barred from practicing law except in official duties)

Other authorities cited:

• Wolfram, Modern Legal Ethics, section 14.4.1, p. 803 (West 1986)
• Theobald v. Botein, Hays, Sklar & Herzberg, 465 F. Supp. 609 (S.D.N.Y. 1979)
• Hickman v. Frerking, 4 Kan. App. 2d 590, 609 P.2d 682 (1980)

See also

• ABA Formal Op. 502: A Pro Se Lawyer and the No-Contact Rule
• Hawaii Ethics Op. 44: Pro Se Communication With Represented Persons

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1991-39/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-91-39.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative. Some party and county names were redacted in the source and appear garbled.

ETHICS OPINION RO-91-39

QUESTION:

"After passing the Alabama State Bar Exam in September 1989, I began a private law practice in Mobile, Alabama. In January of 1990 I sued an individual on behalf of a client for a delinquent account. A judgment was taken by the plaintiff after the district court trial. After several attempts to collect this judgment, a garnishment was filed on behalf of the Plaintiff on or about May 10, 1990. On or about May 31, 1990, I left the civil practice of law in Mobile and became a full-time Assistant District Attorney in [redacted] County, Alabama.

My employment with the [redacted] County District Attorney's Office lasted from June 1990 through August 1991. I then became a full-time Assistant District Attorney for the [redacted] County District Attorney's Office.

In February 1991 I, along with the two members of the law firm with which I was closely associated in Mobile, Alabama, were sued by the Defendant in the above-referenced district court case, [redacted]. [Defendant] is alleging a violation of the Fair Debt Collection Practices Act.

The question to be answered is whether or not I can represent myself, pro se, in this action filed by [redacted]. It is my intention to only represent myself and not to be involved in any way in any other legal representation.

As I have been given an informal opinion from your office, I am now requesting a formal opinion."

ANSWER:

You are entitled to represent yourself, pro se, just as any other individual litigant.

DISCUSSION:

A lawyer-litigant has the same right as any other individual litigant to represent himself or herself. See Wolfram, "Modern Legal Ethics, section 14.4.1, p. 803, West Publishing Co. (1986); Theobald v. Botein, Hays, Sklar & Herzberg, 465 F.Supp. 609 (S.D.N.Y. 1979); Hickman v. Frerking, 4 Kan. App.2d 590, 609 P.2d 682 (1980).

It should be noted that the Code of Alabama, section 12-17-184(11) prohibits district attorneys and assistant district attorneys from practicing law, directly or indirectly, except in the discharge of the official duties of their offices. While the statute was, in all probability, never intended to prohibit an assistant district attorney from representing himself or herself, such a determination is a legal question which is beyond the authority of this Commission to decide.

RWN/clr

10/21/91