Can a law firm's lawyers volunteer as special prosecutors for a district attorney while other firm lawyers defend criminal cases in the same county?
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This page answers the general question as of 1991. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
Two district attorneys' offices asked the committee about pilot programs that would borrow associates from private firms during a budget crunch. In the first, firm lawyers would be appointed special district attorneys to handle criminal appeals for the commonwealth while continuing their firm work. In the second, a firm would pay associates to work full time as trial-level prosecutors on a rotating basis. Both inquirers' firms also did criminal defense in the same county, and both asked whether conflict-of-interest and confidentiality rules barred that defense work.
The committee analyzed both under DR 5-105. It concluded that a single lawyer who simultaneously prosecutes for the commonwealth and defends criminal cases at the trial level in the same county represents "differing interests," and that the DR 5-105(C) consent cure could not be met within one county, so no individual lawyer could do both at once. On vicarious disqualification, the committee held that DR 5-105(D) should not be applied inflexibly to the rest of the firm. Following its earlier opinions on government lawyers (88-2, 89-2) and the public interest in not obstructing recruitment of public lawyers, it allowed other firm lawyers to keep doing county defense work, conditioned on safeguards: screening the program participants from the firm's defense work, separate supervision, strictly segregated files in both the prosecutor's office and the firm, instruction on protecting client confidences, and informed consent from the commonwealth and the affected defendants (with appointment of new counsel for any indigent defendant who would not consent), plus disclosure to the court.
The committee drew one firm line. Where a firm lawyer serves as a trial-level volunteer prosecutor (Inquiry No. 2), the firm may not defend a case being prosecuted by that volunteer. Appearing on both sides of the same case is the core of the differing-interests prohibition, and the public-policy exception did not reach it. For the volunteer prosecuting in the same session, court, or county but not the same case, the committee treated the situation like the appeal/trial scenario and allowed it under the same screening and consent safeguards. It cautioned that the advice could change on different facts, for example if a firm had so much defense work and so many volunteer prosecutors that it appeared to be setting prosecution policy.
Currency note
This opinion was issued in 1991, before Massachusetts's adoption of the 2015 revisions to the 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: Could one lawyer both prosecute for the commonwealth and defend criminal cases in the same county at the same time?
A: No. The committee concluded that doing both at the trial level in the same county is representing "differing interests" under DR 5-105(A), and that the DR 5-105(C) consent cure could not be satisfied within a single county, so the same lawyer could not do both.
Q: Were the rest of the firm's lawyers disqualified from county defense work because a colleague volunteered as a prosecutor?
A: Not automatically. The committee held that DR 5-105(D) should not be applied inflexibly to government and pro bono service, so other firm lawyers could keep doing defense work if screening, separate supervision, segregated files, and informed consent from the commonwealth and defendants were in place.
Q: Could the firm defend a case being prosecuted by its own volunteer?
A: No. The committee said appearing on both sides of the same case is the core of the differing-interests prohibition, and the public-policy exception for volunteer programs did not justify it.
Background and rules framework
The opinion turned entirely on DR 5-105, the Massachusetts disciplinary rule then governing representation of differing interests: subsection (A) (declining employment likely to involve differing interests), subsection (C) (the consent and "obviousness" cure), and subsection (D) (imputation to the lawyer's firm). Those provisions correspond to today's Model Rule 1.7 (concurrent conflicts) and Model Rule 1.10 (imputation), with the government-lawyer dimension now addressed by Model Rule 1.11. The committee also flagged DR 9-101(B) and G.L. c. 268A regarding later firm use of matters the volunteers worked on, while declining to interpret c. 268A as a question of substantive law.
Citations and references
Rules of Professional Conduct:
- DR 5-105(A), (C), (D) / Model Rule 1.7 and Model Rule 1.10 (differing interests; imputation)
- Model Rule 1.11 (current and former government lawyers)
- DR 9-101(B) (later private employment in a matter the lawyer handled for the government)
Statutes:
- G.L. c. 268A (conflict-of-interest statute; the committee declined to interpret it)
Other opinions cited:
- MBA Opinions 80-1, 70-10, 76-26, 88-2, 89-2 (government-lawyer and differing-interests analysis)
- Nassau County (NY) Opinion 88-1 (continued defense after accepting prosecutor employment)
See also
- MA Bar Ethics Op. 91-7: Former prosecutor representing the victim in a related civil suit
- MA Bar Ethics Op. 92-3: Dropping one client to take a conflicting representation
- MA Bar Ethics Op. 92-2: Town counsel adverse to a client served as estate executor
Source
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