Can a former assistant district attorney defend a criminal defendant on the same charges he helped investigate and indict as a prosecutor?

Plain-English summary

A lawyer who had served as a prosecutor asked, on the eve of a capital-murder trial, whether he could now appear as defense counsel for a defendant whose charges arose from an investigation and grand jury indictment in which the lawyer had participated as an assistant or "acting" district attorney.

The Disciplinary Commission concluded the Rules of Professional Conduct prohibit the lawyer from representing the defendant on those charges unless the district attorney consents after consultation. The opinion quoted Rule 1.11(a), which bars a lawyer (except as law may otherwise permit) from representing a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. Because the lawyer participated as the prosecutor in the investigation phase and in follow-up that resulted in the defendant's capital-murder indictment, the rule prohibited his appearance as defense counsel.

The opinion observed that the prior Code of Professional Responsibility, through Disciplinary Rule 5-101(C), reached the same result by prohibiting a lawyer from representing a party after previously representing an adverse party or interest, and that Rule 1.11 follows that standard. It added that the lawyer appeared to have disclosed to the prosecution personal information that could adversely affect the defendant, which would also give the scenario the "appearance of impropriety" recognized under the former Code. The Commission cited RO-90-18 (an attorney whose secretary served on a grand jury should not take cases on indictments returned by that grand jury) and concluded that, given the lawyer's more extensive and ongoing involvement, his representation of the defendant on the same matters was prohibited.

Currency note

This opinion was issued in 1992, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 former assistant DA defend someone he helped prosecute?

A: Per the opinion, no, not on charges arising from an investigation and indictment in which he participated as an assistant or acting district attorney, unless the district attorney consents after consultation.

Q: Which rule controls successive government-to-private employment here?

A: The opinion applied Rule 1.11(a), which bars representing a private client in a matter in which the lawyer participated personally and substantially as a public officer or employee, absent the government agency's consent after consultation.

Q: Did the lawyer's earlier disclosures to the prosecution matter?

A: Yes. The opinion noted the lawyer appeared to have disclosed personal information that could adversely affect the defendant, which gave the scenario the appearance of impropriety recognized under the former Code of Professional Responsibility.

Background and rules framework

The opinion interprets Rule 1.11 (Model Rule 1.11, successive government and private employment) of the Alabama Rules of Professional Conduct, and notes its continuity with former Disciplinary Rule 5-101(C) of the prior Code of Professional Responsibility.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 / Ala. R. Prof. C. 1.11(a) (successive government and private employment; agency consent)
• Former Code of Professional Responsibility, DR 5-101(C) (prior-adverse-representation bar)

Other opinions cited:

• RO-90-18: attorney whose secretary served on a grand jury should not take cases on that grand jury's indictments

See also

• AL Ethics Op. 1992-22: a city councilman's firm serving as city prosecutor
• AL Ethics Op. 1991-44: district attorney's office prosecuting a criminal defendant

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1992-18/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-92-18.pdf

Original opinion text

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

ETHICS OPINION

RO-92-18

QUESTION:

"I enclose a copy of my letter dated August 21, 1992, written to Hon. __, Circuit Judge of ____ County, Alabama, and I believe it is self-explanatory. However, if my question for an ethics opinion should be in a different and more specific format, please call me immediately and I will kindly oblige.

I also enclose a copy of Court Appearance Notice dated August 27, 1992, and as you can see, this capital murder case is set for trial Friday, October 19, 1992. Therefore, time has become of the essence and before I make any move in any direction, I would appreciate having in my hand The Disciplinary Commission's ethics opinion as requested."

ANSWER:

The Rules of Professional Conduct prohibit your representing a criminal defendant whose criminal charges arise from an investigation and Grand Jury indictment wherein you participated as an Assistant District Attorney or the "Acting" District Attorney, unless the District Attorney consents after consultation.

DISCUSSION:

Rule 1.11(a), Alabama Rules of Professional Conduct, states as follows:

"Rule 1.11 Successive Government and Private Employment

(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule."

Therefore, since you participated as the prosecutor in the investigation phase, as well as some follow-up in those proceedings which resulted in the criminal defendant involved in these matters being indicted for capital murder, the above-referenced Rule prohibits your appearance as defense counsel in this matter.

Under the previous Code of Professional Responsibility of the Alabama State Bar, Disciplinary Rule 5-101(C) prohibited a lawyer from representing a party to a cause or his successor after having previously represented an adverse party or interest in connection therewith. Rule 1.11, quoted above, follows that same standard.

It would also appear that you have disclosed to the prosecution in this case certain information known to you personally which information could adversely affect the criminal defendant involved. Even this would give your stated scenario the "appearance of impropriety" which was an applicable standard under the previous Code of Professional Responsibility of the Alabama State Bar.

Indicative of the Commission's application of these rules is RO-90-18 wherein the Commission held that an attorney whose secretary had served on a Grand Jury should not accept appointments and/or retain criminal cases relative to any indictments or cases returned by that Grand Jury.

Since your involvement in the proceedings leading up to the indictment of the criminal defendant in your matter was much more involved and ongoing, said participation prohibits your representation of this criminal defendant in those same matters.

JAM/bm

9/16/92