When a former defense lawyer joins a district attorney's office, must the whole DA's office be disqualified from cases the new hire defended?

Plain-English summary

A district attorney's office asked the Disciplinary Commission to clarify an earlier opinion (RO-90-57) on vicarious disqualification. The question was whether the district attorney and the other assistant district attorneys must step out of pending criminal cases when a newly employed assistant had previously been involved in those cases, either as defense counsel, or through prior representation of a co-conspirator, or through prior representation of an alleged co-conspirator who was the spouse of the subject.

The Commission concluded that, under Rule 1.11 of the Alabama Rules of Professional Conduct, the district attorney and the other assistants are not vicariously disqualified, so long as the newly hired assistant is adequately screened from participation in the governmental matter. It gave the same answer to all three variations of the question.

The opinion noted that RO-90-57 had been decided under the former Code and had suggested the result might differ once Alabama adopted the Model Rules; the Supreme Court's order adopting the Rules of Professional Conduct, effective January 1, 1991, established the new standard. The Commission quoted Rule 1.11(c)(1) and its Comment, which states that paragraph (c) "does not disqualify other lawyers in the agency with which the lawyer in question has become associated," and the Hazard and Hodes treatise explaining that imputing the moving lawyer's disqualification to the government as if it were a new "firm" under Rule 1.10 is inappropriate, with screening as the practical solution. The opinion added that the Supreme Court of Alabama, in a footnote to Roberts v. Hutchins, had affirmed the availability of a screening "wall" when lawyers move between government and private practice. The new assistant himself must still comply with Rules 1.6 and 1.9 and could not participate in the matters absent the former client's consent. To the extent RO-90-57 was inconsistent, the opinion modified it.

Currency note

This opinion was issued in 1994, 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 Treat this page as historical context, not current guidance.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: Does hiring a former defense lawyer disqualify an entire district attorney's office?

A: Per the opinion, no. Rule 1.11(c) disqualifies the individual lawyer who participated in a matter, but its Comment provides that it does not disqualify the other lawyers in the agency, so the office may continue if the new assistant is screened.

Q: What does the new assistant district attorney have to do?

A: The opinion concluded the new assistant must be adequately screened from the matter and must comply with Rules 1.6 and 1.9; he could not participate in the pending criminal matters without the former client's consent.

Q: Did this opinion change the earlier RO-90-57 result?

A: Yes. The opinion explained that RO-90-57 predated Alabama's January 1, 1991 adoption of the Rules of Professional Conduct, and it modified RO-90-57 to the extent the earlier opinion was inconsistent with the screening analysis under Rule 1.11.

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, with reference to Rule 1.10 (imputed disqualification within a firm) and the lawyer's continuing duties under Rules 1.6 and 1.9 to a former client. The Commission relied on the text and Comment of Rule 1.11(c)(1), treating screening of the affected lawyer as the mechanism that prevents disqualification of the rest of the government office.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 / Ala. R. Prof. C. 1.11 (successive government and private employment; screening)
• Model Rule 1.10 / Ala. R. Prof. C. 1.10 (imputed disqualification)
• Model Rules 1.6 and 1.9 / Ala. R. Prof. C. 1.6, 1.9 (confidentiality; duties to former clients)

Cases:

• Roberts v. Hutchins, 572 So. 2d 1231 (Ala. 1990), availability of a screening wall when lawyers move between government and private practice (n.3)

Other opinions cited:

• Ala. RO-90-57: prior opinion on vicarious disqualification of district attorneys, modified to the extent inconsistent

See also

• AL Ethics Op. 1990-05: imputed disqualification rule as applied to district attorneys
• AL Ethics Op. 1992-18: attorney who served as DA when defendant was investigated/indicted
• CA Op. 2002-158: Public Defender Alternate Office Conflicts

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1994-10/
• Original PDF: https://www.alabar.org/assets/2019/02/1994-10.pdf

Original opinion text

ETHICS OPINION

RO-94-10

District attorney (and assistants) not vicariously disqualified even though newly employed assistant has participated in criminal cases as defense counsel so long as new assistant is adequately "screened" from participation

QUESTION:

"I am writing in response to a written ethical inquiry from you dated August 23, 1994. I am doing this for a clarification of one of the prior decisions submitted in the letter particularly RO-90-57. I would especially like to address Issue One and Two in the opinion with regard to the principle of 'vicarious disqualification.' I notice that under these rulings the Code of Professional Responsibility disqualified subsequent associate attorneys from participation in any cause in which the new associate had previously participated.

I also note the decision in Issue Two states that if this decision was revisited under the 'new' rules it would probably be addressed in a 'different fashion.'

Reviewing the new rules particularly Rule 1.11(c)(1) which is footnoted to the fact that 'Paragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated.'

Probably more simply stated, the issues would be:

1. Are District Attorneys and Assistant District Attorneys disqualified from participation in pending criminal cases by the principle of vicarious disqualification when the newly employed assistant has participated in the pending criminal case as a defense attorney?

2. Are District Attorneys and Assistant District Attorneys disqualified from participation in pending criminal cases by the principle of vicarious disqualification when the newly employed assistant has participated in a pending criminal matter through previous representation of a co-conspirator?

3. Are District Attorneys and Assistant District Attorneys disqualified from participation in pending criminal cases by the principle of vicarious disqualification when the newly employed assistant has participated in a pending criminal case through previous representation of an alleged co-conspirator who is a husband or wife of the subject case?"

ANSWER QUESTION ONE:

District Attorneys and Assistant District Attorneys are not vicariously disqualified pursuant to Rule 1.11, Alabama Rules of Professional Conduct when a newly employed assistant has participated in criminal cases as a defense attorney so long as the "new" attorney is adequately "screened" from participation in the governmental activity.

ANSWER QUESTION TWO:

Same as Answer One, above.

ANSWER QUESTION THREE:

Same as Answer One, above.

DISCUSSION:

The Disciplinary Commission previously issued formal opinion RO-90-57 which dealt with similar issues proposed in the instant inquiry. The Disciplinary Commission determined in that matter that the determination reached therein might be different if the Supreme Court of Alabama adopted the Model Rules of Professional Conduct. On January 1, 1991, the Supreme Court's order adopting the Model Rules effectively established the new standard by which vicarious disqualification of governmental and private attorneys would be determined.

Rule 1.11(c)(1), Alabama Rules of Professional Conduct, states as follows:

"Rule 1.11 Successive Government and Private Employment

(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:

(1) Participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be authorized to act in the lawyer's stead in the matter;...."

The pertinent provision of the Comment states:

"Paragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated."

Further, Hazard and Hodes, in their treatise The Law of Lawyering, state:

"When a lawyer moves into the government from private practice, he is still bound by Rules 1.6 and 1.9. He may not divulge any information about a former client and may not oppose the client in a matter in which he had previously represented him, or in a matter substantially related thereto. This bar can be lifted only by the consent of the former client.

On the other hand, imputed disqualification of the government, treating it as a new 'firm' under Rule 1.10, is inappropriate. If Rule 1.10(a) were to apply to the government, the government would either have to forego certain enforcement matters, or hire lawyers who had never been in private practice, or who had represented only clients who would never be adverse to the governmental unit hiring the lawyer.

The only practical escape from this dilemma is to screen the affected lawyer from participation in government activity that is adverse to his former clients and related to work that he performed for them; Rule 1.11(c)(1) so directs." §1.11:400.

Further, the Supreme Court of Alabama, in a footnote to its opinion in Roberts v. Hutchins, 572 So.2d 1231 (Ala. 1990), affirms the availability of the "Chinese Wall" in certain cases involving the movement of lawyers between the government and private law firms. 572 So.2d 1234, n.3.

Based on the foregoing, it is the opinion of the Disciplinary Commission that an effective application of the "Chinese Wall" to the newly employed assistant would allow the District Attorney and other Assistant District Attorneys to participate in pending criminal cases even though the newly employed Assistant had represented a co-conspirator of a pending case, specifically, husband and wife co-conspirators.

The new assistant would have to insure his compliance with Rules 1.6 and 1.9, Alabama Rules of Professional Conduct. He could in no way participate in the pending criminal matters absent the consent of his client. The remaining members of the District Attorney's Staff, employing the effective "Chinese Wall" concept, would not be vicariously disqualified from further participation in the other pending criminal matter.

To the extent that RO-90-57 is inconsistent with the holding herein, that opinion is modified accordingly.

JAM/vf

9/7/94