May a California law firm defend the same client a former government prosecutor in the firm investigated, by screening the former prosecutor?

State Bar of California COPRAC Formal Opinion 1993-128: Screening a Former Prosecutor at a Firm Defending the Same Matter

Short answer: The opinion concluded that a law firm may represent a criminal defendant whose case was previously prosecuted by a member of the firm before joining, provided (i) the former-prosecutor member takes no part, direct or indirect, in the defense, (ii) the firm institutes effective screening procedures, and (iii) the former-prosecutor member receives no "valuable consideration" from the representation, which under Business and Professions Code section 6131(b) would itself be a misdemeanor and would trigger former Rule 1-120's prohibition on assisting violation of the State Bar Act.

Currency note

This opinion was issued in 1993, under the former California Rules of Professional Conduct and before the State Bar of California's adoption of the November 1, 2018 revisions. The opinion interprets former Rules 1-120 and 3-310, together with Business and Professions Code section 6131(b) (the State Bar Act misdemeanor for a former prosecutor later involved in the defense). The substance is now in current California Rules 1.10 (imputed disqualification), 1.11 (former government lawyers), and 8.4 (assisting violation of the law). Section 6131 continues in effect. 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 Treat this page as historical context, not current guidance.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.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee took up a scenario in which a deputy district attorney (X) investigated a probation violation by Acme Corporation and two of its officers, filed a motion to revoke probation, then resigned and joined a private firm (ABC). Acme wished to retain ABC, and ABC assigned the defense to Y.

On X's role, the committee opined that Business and Professions Code section 6131(b) makes it a misdemeanor for a former prosecutor who aided a prosecution to later "directly or indirectly" advise on or take any part in the defense, or to receive any "valuable consideration" from the defendant. Section 6131(b) also provides for disbarment. The committee opined that a violation of section 6131 could be a violation of section 6068(a). The committee opined that X must play no part, direct or indirect, in Acme's defense; the language is absolute, reaching even "brainstorming the case" with a partner or providing research materials from unrelated cases.

On the firm's ability to represent Acme, the committee opined that former Rule 3-310(E) prohibits accepting employment adverse to a former client where the lawyer has obtained material confidential information, absent the former client's informed written consent. The committee opined that during the investigation X likely consulted witnesses and other prosecutors and obtained confidential information material to the case. The committee opined that the district attorney's office would be in the position to waive the right to confidentiality on behalf of the People of the State of California, although the rule speaks of the "former client."

On imputed disqualification, the committee opined that no California rule expressly addresses the situation, but ABA Model Rule 1.11(a)(1) provides that no lawyer in the firm may represent the client unless the disqualified lawyer is screened from participation and receives no fee. While ABA Model Rules are not binding (citing State Bar Formal Op. 1983-71), California courts have addressed screening in disqualification cases. The committee cited Klein v. Superior Court, 198 Cal.App.3d 894 (1989) (disqualification where firm did not screen); Atasi Corp. v. Seagate Technology, 847 F.2d 826 (9th Cir. 1988) (presumption of sharing confidences); Chambers v. Superior Court, 121 Cal.App.3d 893 (1981) (no disqualification where sufficient protective measures taken); and Chadwick v. Superior Court, 106 Cal.App.3d 108 (1980) (former public defender at the prosecutor's office screened from related cases).

The committee opined that ABC could represent Acme if it instituted screening procedures, including (non-exclusive list): (1) a firm principal responsible for implementing and modifying the procedures; (2) segregation of sensitive documents, files, and other items so access is realistically limited; (3) notice to firm personnel (those who may have other-matter contact with X, and those working on the adverse engagement) of the need to avoid discussion, with notice to new personnel as they are added. The committee opined that the difficulty of effective screening depends on firm size: a large firm has more rooms but also more leak points. The committee opined that X's duty to protect his former client's confidences continues even after the relationship ends (citing Yorn v. Superior Court, 90 Cal.App.3d 669 (1979)).

The committee opined that section 6131(b)'s ban on X receiving any "valuable consideration" answers the fee-sharing question for California. If ABC accepts knowing X will receive valuable consideration, ABC violates former Rule 1-120 (assisting violation of the State Bar Act). The ABA Model Rule's notice-to-the-government-agency requirement is not required by California law.

On disclosure to Acme, the committee opined that under the Discussion to former Rule 3-310, paragraph (B) applies to a partner or associate's relationships when the member knows of them. Rule 3-310(B)(2) requires disclosure if the previous relationship would substantially affect representation. The committee opined that because the prosecution may seek to disqualify ABC, this disclosure is required.

Common questions

Q: What must the former prosecutor not do at the new firm?

A: Per the opinion (citing Bus. & Prof. Code section 6131(b)), the former prosecutor cannot take any direct or indirect part in the defense (including brainstorming with a partner or providing unrelated research materials), nor receive any "valuable consideration" from the representation. Violation is a misdemeanor and grounds for disbarment.

Q: Can the firm represent the same defendant if it screens the former prosecutor?

A: Per the opinion, yes, if the firm institutes effective screening procedures (including a responsible principal, segregation of materials, and notice to personnel) and the former prosecutor receives no fee from the case.

Q: Whose informed consent under former Rule 3-310(E) is needed?

A: Per the opinion, the district attorney's office, as counsel for the People, would be best positioned to determine whether to waive the right to confidentiality, although the rule speaks of the "former client."

Q: Are the screening procedures listed in the opinion exclusive?

A: Per the opinion, no. The committee identified three categories as illustrative: (1) a firm principal responsible for implementation, (2) segregation of sensitive items, (3) notice to all relevant personnel including new staff added later.

Q: Must the firm notify the government agency, as ABA Model Rule 1.11 requires?

A: Per the opinion, no. The committee opined that California law and the California Rules do not require such notice.

Q: What must the firm tell the client?

A: Per the opinion, the attorney handling the case must comply with former Rule 3-310(B)(2)'s disclosure obligation because the prior relationship would substantially affect the representation (including the risk of disqualification).

Background and rules framework

The opinion interprets former California Rules 1-120 (assisting violation of the State Bar Act) and 3-310 (conflicts, including (B), (B)(2), (E), and the Discussion), together with Business and Professions Code sections 6068(a) and 6131(b). The substance is now in current California Rules 1.10 (imputed disqualification), 1.11 (former and current government lawyers), and 8.4. Section 6131 continues in effect.

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 1-120
• Former California Rule 3-310, including (B), (B)(2), (E); Discussion
• ABA Model Rule 1.11(a)(1) and (a)(2) (referenced)

Statutes:

• Cal. Bus. & Prof. Code section 6068(a)
• Cal. Bus. & Prof. Code section 6131(b) (misdemeanor; disbarment)

Cases:

• Klein v. Superior Court, 198 Cal.App.3d 894 (1989), disqualification absent screening
• Atasi Corp. v. Seagate Technology, 847 F.2d 826 (9th Cir. 1988), presumption of shared confidences
• Chambers v. Superior Court, 121 Cal.App.3d 893 (1981), screening defeats disqualification
• Chadwick v. Superior Court, 106 Cal.App.3d 108 (1980), former PD screened at DA's office
• Yorn v. Superior Court, 90 Cal.App.3d 669 (1979), continuing duty to former client

Other opinions cited:

• Cal. State Bar Formal Op. 1983-71 (ABA materials as persuasive)

See also

• CA Ethics Op. 1993-133: Suing the Opposing Party's Former Lawyer

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Source HTML: https://www.calbar.org/ethics/Opinions/1993-128.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinions - FORMAL OPINION NO. 1993-128

Editor's Note:

State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.

THE
STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON

PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1993-128

ISSUE:

May a law firm undertake representation of a client in a criminal matter where a member of the firm directly assisted in the prosecution of the matter as a government attorney before joining the law firm?

DIGEST:

The law firm may represent the client if the affected member takes no part in the defense of the action nor shares in any fee earned and the law firm effectively screens the affected member from having any contact with the case so as to protect against the disclosure of confidences and secrets of the affected member's former client.

AUTHORITIES INTERPRETED:

Rules 1-120 and 3-310 of the California Rules of Professional Conduct of the State Bar of California.

Business and Professions Code section 6131.

DISCUSSION

A deputy district attorney (X) is assigned the task of investigating a probation violation by Acme Corporation and two of its officers. The investigation lasts approximately six months and culminates in X filing in superior court a motion to revoke Acme's probation. Before that motion is litigated, X resigns from the office of the district attorney and joins ABC, a local law firm.

Acme wishes to hire ABC to defend it in the probation revocation hearing. Y, an attorney at ABC, is assigned Acme's defense.

I. May X have any role in the defense of Acme?

Business and Professions Code section 6131, subdivision (b), provides that it shall be a misdemeanor for any person:

Who, having himself prosecuted or in any manner aided or promoted any action in any court as district attorney or other public prosecutor, afterwards, directly or indirectly, advises in relation to or takes any part in the defense thereof, as attorney or otherwise, or who takes or receives any valuable consideration from or on behalf of any defendant in any such action upon any understanding or agreement whatever having relation to the defense thereof. The section further provides that the attorney so acting shall be disbarred. If, under these circumstances, X takes any actions which would violate section 6131, it may constitute a violation of section 6068, subdivision (a) of the Business and Professions Code.

In the situation presented, it is assumed that X aided in the prosecution of the probation violation against Acme. This would preclude X from taking any part in the defense of Acme. Business and Professions Code section 6131 also would prohibit X from either "directly or indirectly" advising in relation to the defense of Acme. Thus, X must play no part in Acme's defense.1

X also runs the risk of violating Business and Professions Code section 6131 if he "takes or receives any valuable consideration" from or on behalf of Acme. This means that any income generated by the defense of Acme must be segregated within the partnership, and X must not receive anything which might be construed as "valuable consideration" to avoid violating the statute.

II. May ABC represent Acme?

Rule 3-310 of the California Rules of Professional Conduct governs situations in which a member may represent adverse interests. Rule 3-310(E) provides: "A member shall not, without the informed written consent of the client or former client, accept employment adverse to a the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment." Aside from the provisions of section 6131 of the Business and Professions Code, if X has obtained confidential information by virtue of his duties as a deputy district attorney, it is clear that X could not represent Acme in the probation revocation proceedings absent the informed written consent of the district attorney's office.2 It is likely that during the investigation of the matters which led to the motion to revoke Acme's probation, that X consulted with witnesses and engaged in discussion with other members of the district attorney's office regarding the filing of the motion. These discussions contain, in all likelihood, confidential information material to the client. It is the possession of this confidential material information that requires compliance with rule 3-310(E).

Does the fact of X's employment by ABC create a vicarious conflict of interest such that ABC would be precluded from representing Acme? Although there is no California Rule of Professional Conduct which discusses this type of "imputed disqualification", the American Bar Association Model Rules of Professional Conduct specifically address this situation.3

American Bar Association Model Rule 1.11(a)(1) provides that no lawyer in a firm with which the former government attorney is associated may represent the client unless the disqualified lawyer is screened from any participation in the matter and receives no part of the fee generated by the representation. Thus, under the American Bar Association Model Rules of Professional Conduct, ABC may represent Acme provided that X is effectively screened from participation in the matter and if X receives no part of the fee generated by the representation.

Though the American Bar Association Model Rules of Professional Conduct are not binding on California attorneys, our courts have addressed the screening procedures envisioned by the American Bar Association rule in deciding disqualification questions. In Klein v. Superior Court (1989) 198 Cal.App.3d 894 [192 Cal. Rptr.509], the court upheld the disqualification of a firm because the member, although not involved in the current case, nevertheless was found to have received confidential information in the prior employment. The court further found that the firm had made no attempt to screen the attorney from the litigation at hand. In Atasi Corporation v. Seagate Technology (9th Cir. 1988) 847 F.2d 826, the Ninth Circuit Court of Appeals disqualified the law firm representing plaintiff in the matter because there was a presumption that the attorney had shared confidences he had gained in the earlier representation with members of the second firm now representing plaintiff.

The case of Chambers v. Superior Court (1981) 121 Cal. App. 3d 893 [175 Cal. Rptr. 575], is probably the closest case to the facts presented here. In Chambers v. Superior Court, the state moved to disqualify the plaintiff's law firm on the ground that one of the members of the firm had previously been employed by the state and had access to confidential information relating to the matter while so employed. In refusing to disqualify the law firm from further representation of the plaintiff, the court relied, in part, on the fact that the law firm had taken "sufficient protective measures to screen" the attorney from any participation in the subject action.

Further support for the approach taken by the American Bar Association Model Rules of Professional Conduct is found in the case of Chadwick v. Superior Court (1980) 106 Cal.App.3d 108 [164 Cal. Rptr. 864]. In Chadwick v. Superior Court, a deputy public defender left the public defender office and began working for the district attorney's office. A motion was made to disqualify the district attorney's office from prosecuting any cases in which the former deputy public defender had represented the defendants. The court refused to disqualify the prosecution office on the basis of knowledge imputed to the office by virtue of the public defender's association with the office. In refusing to disqualify the district attorney's office, the court noted:

[T]he district attorney's office has been at some pains to isolate Mr. Jennings from any prosecutorial involvement in the cases . . . . He has no connection with the prosecution of the cases he had handled as a deputy public defender. He has sworn not to discuss these cases with the prosecutorial personnel. Mr. Jennings has no supervisorial or policy making role in the prosecutor's office. His own office is located in the Santa Maria Juvenile Court building, which is separate from the building that houses the district attorney's office. (Chadwick v. Superior Court, supra, 106 Cal.App.3d at p. 112.)

From a review of the preceding cases, the committee believes that if ABC can institute proper screening procedures to isolate X from attorneys having responsibility for the defense of Acme Corporation, any knowledge of confidences possessed by X would not be imputed to ABC.4 In this manner, ABC would not be precluded from representation of Acme Corporation by rule 3-310(E). The review of the case law leads us to the conclusion that the following procedures, while not an exclusive list, are the types of procedures which might constitute effective screening:

1. A principal of the law firm should be responsible for the implementation and modification of any screening procedures;

2. All sensitive documents, files, and other tangible and intangible items relating to the adverse engagement should be segregated and located so that access can be realistically limited;

3. The personnel with whom the affected member may have contact on other unrelated matters should be notified about the need to screen the member from information concerning the adverse engagement; and all personnel of the firm working on the adverse engagement should be notified in writing of the nature of the problem and the need to avoid any discussion of the adverse matter with the member or other personnel. As new personnel are assigned to assist in the engagement, they too must be notified.

Under the facts given, it is difficult to determine whether such procedures can conceivably be implemented. The danger of disclosure of confidential communications in such situations is very real. X is in possession of the confidences and secrets of his former client. His duty to protect those confidences and secrets continues even though he is no longer plaintiff's counsel in the probation revocation proceedings and has terminated his relationship with the district attorney's office. (Yorn v. Superior Court (1979) 90 Cal. App. 3d 669, 675 [153 Cal. Rptr. 295].) If ABC is a large firm with many levels of support personnel, and numerous file rooms, it may be easier to segregate the materials and communications relating to Acme's case than in a smaller firm. But in a large firm, there are many more employees and attorneys who are in a position to leak the forbidden information than in a smaller firm.

Model rule 1.11(a)(1) of the American Bar Association Model Rules of Professional Conduct requires more than just the implementation of screening procedures to permit ABC to represent Acme. Model rule 1.11(a)(1) further provides that X must be apportioned no part of the fees derived by ABC from its representation of Acme. While neither the California Rules of Professional Conduct nor the cases dealing with vicarious disqualification address this issue, this question is squarely answered by Business and Professions Code section 6131, subdivision (b). If X will receive any "valuable consideration" by virtue of the representation, X will be in violation of the law. If ABC accepts the representation with the knowledge that X will receive such "valuable consideration", ABC will be in violation of rule 1-120 which prohibits assisting, soliciting or inducing the violation of the State Bar Act. Business and Professions Code section 6131, subdivision (b), is part of the State Bar Act.5

American Bar Association Model rule 1.11(a)(2) contains a requirement that the firm accepting such employment give prompt written notice "to the appropriate government agency to enable it to ascertain compliance with the provisions . . . ." of the rule. Such notice is not required by California law nor is it required by the California Rules of Professional Conduct.

The attorney in ABC who is handling the defense of Acme may also have to comply with the provisions of rule 3-310(B). Although X is not personally handling Acme's defense, if the attorney handling the matter has knowledge of X's prior relationship with the prosecution, he or she will have to make the disclosure required under rule 3-310(B).6 Rule 3-310(B)(2) requires disclosure if the member previously had a relationship with a party or witness and if the relationship would substantially affect the member's representation. As we noted earlier, the possibility exists that the prosecution may seek to disqualify ABC from representing Acme by virtue of X's previous employment. The representation of Acme would be substantially affected should ABC be disqualified, and this fact must be disclosed to Acme.7

It is the opinion of this Committee that ABC is not precluded from representation of Acme providing that the firm effectively screens X from direct or indirect participation in the defense and further effectively precludes X from receiving any "valuable consideration" as a result of the representation.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any person or tribunal charged with regulatory responsibility or any member of the State Bar.

1 The language of Business and Professions Code section 6131 is absolute. It is easy to see that X may not "brainstorm the case" with his partner. The plain language would also prohibit X from providing research materials generated in unrelated cases, for such could constitute the "indirect" assistance forbidden by the statute.

2 Although the rule speaks of consent of the "former client," it is believed that since the harm sought to be avoided is the disclosure of confidential information, the district attorney's office, as counsel for the client (People of the State of California), would best be in a position to determine whether or not to waive the right to confidentiality.

3 The American Bar Association Model Rules of Professional Conduct, like sister state rules and court opinions, are not binding in California, although they may be persuasive in those instances where there is no controlling rule of professional conduct, statute or court ruling in California. (See State Bar Formal Opn. No. 1983-71.)

4 Our conclusions in this opinion are limited to the context of potential violations of the California Rules of Professional Conduct. Whether a court might prohibit ABC from representing ACME even though X is effectively screened is a legal question, and we no not opine on that question.

5 Since we conclude that Business and Professions Code section 6131, subdivision (b), specifically applies, we are not addressing the question of X sharing in any fees generated by the representation.

6 The Discussion to rule 3-3110 states: "Paragraph (B) is intended to apply only to a member's own relationships or interests, unless the member knows that a partner or associate in the same firm as the member has or had a relationship with another party or witness or has or had an interest in the subject matter of the representation."

7 Rule 3-310(A)(1) defines the type of disclosure necessary and requires that the client be informed "of the actual and reasonably foreseeable adverse consequences . . . ." (Emphasis added.)