Can a former prosecutor who handled a criminal battery case privately represent the victim in a civil suit over the same battery?

Plain-English summary

While an assistant district attorney, a lawyer was assigned to prosecute a husband for battery on his wife. He spoke at length with the victim about the case, procedure, and disposition (during which she mentioned she was considering a civil action), and had a brief conversation with defense counsel, but he left the office and entered private practice before ever appearing in court, informing both the victim and defense counsel that he would not take the case to trial. Shortly after entering private practice, the victim asked him to represent her in the civil case, something never previously discussed, and he sought ethical advice.

The committee applied DR 9-101(B), which bars a lawyer from accepting private employment in a matter in which he had substantial responsibility as a public employee, and, lacking Massachusetts precedent, looked to other authority. Drawing on General Motors Corp. v. City of New York, it concluded the private civil action was the same "matter" as the criminal prosecution, since the rule's purpose is to prevent public officials from handling matters with an eye toward later private employment, and the fact that the lawyer had not "changed sides" was irrelevant to that purpose. On "substantial responsibility," it relied on ABA Formal Opinion 342, which reads the term to require personal involvement to an important, material degree, not mere nominal supervision; the committee found the lawyer's assignment to the case and his substantial conversations with the victim and defense counsel sufficient.

The committee held that the former prosecutor was barred from the proffered representation even though it likely never occurred to him that such employment would be offered, because the perception that criminal enforcement could be conducted to advance future private work, and the need for a rule preventing it, justified the conclusion. It expressed no view on G.L. c. 268A (conduct of public officials), as outside its jurisdiction, and, having found DR 9-101(B) dispositive, did not reach whether confidences or secrets under DR 4-101 would also require declining.

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: Can a former prosecutor later represent a private party in the same case?

A: Under this opinion, no. The committee held that DR 9-101(B) barred the former assistant district attorney from privately representing the victim in a civil action that was the same "matter" as the prosecution he had handled.

Q: What counts as "substantial responsibility" in a prior government role?

A: Following ABA Formal Opinion 342, the committee said it means personal involvement to an important, material degree, not mere nominal supervision; the lawyer's assignment and his substantial conversations with the victim and defense counsel met that standard.

Q: Does it matter that the lawyer was not "changing sides"?

A: No. The committee said that whether the lawyer changed sides was irrelevant, because the purpose of DR 9-101(B) is to prevent public officials from handling matters with an eye toward later private employment.

Background and rules framework

The opinion applied DR 9-101(B) (a lawyer shall not accept private employment in a matter in which he had substantial responsibility as a public employee), corresponding to Model Rule 1.11 (successive government and private employment). The analysis turned on the meaning of "matter" and "substantial responsibility."

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 / DR 9-101(B) (former government lawyer; substantial responsibility)

Cases:

• General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974) (same "matter"; purpose of the rule)
• Pisa v. Commonwealth, 378 Mass. 724 (1979) (loyalty in successive representation)

Other opinions cited:

• ABA Formal Opinion 342 (meaning of "substantial responsibility")
• ABA Informal Opinion 1374 (former government lawyer barred from related private action)

See also

• MA Bar Ethics Op. 03-1: City lawyer opposing a former official
• MA Bar Ethics Op. 95-3: A district attorney's relative defending criminal cases

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-1991-opinion-no-91-7/opinion-no-91-7