If a firm's associates serve case-by-case as special assistant district attorneys, is the whole firm disqualified from representing municipal clients before the county commissioners?

Plain-English summary

A District Attorney proposed to appoint associates of Law Firm A as "Special Assistants" on a case-by-case basis. Each would handle only the assigned criminal cases, preparing and trying them, without participating in pre-trial plea bargaining or the office's non-criminal work. Law Firm A also represented municipalities in the county whose matters might come before the County Commissioners, and the question was whether the firm would be disqualified from that municipal work.

The Commission answered no. While Bar Rules 3.4(a) and 3.4(b) extend a lawyer's disqualification to all members of the lawyer's firm under Rule 3.4(k), a conflict here would require finding that Rule 3.4(k) applies to common employment in a government agency. The Commission held it does not, relying on two sources: the Reporter's Note to the rule, which states that the term "lawyer affiliated with him or his firm" does not include common employment in a government agency, and the Law Court's decision in Superintendent of Insurance v. Attorney General, 558 A.2d 1197 (Me. 1989), which the Commission read to hold, implicitly and necessarily, that subdivision (k) has no application to the Attorney General's office. Because the associate cannot be said to automatically represent every other client of the District Attorney's office (except to the extent the associate might be asked to advise the County Commissioners), no conflict of interest appears. The Commission acknowledged this conclusion is inconsistent with its earlier Opinion No. 49.

One member dissented, and would have held that Rule 3.4(k) applies to public agencies; that Superintendent of Insurance was a unique case turning on the Attorney General's peculiar constitutional status; and that the District Attorney's office advising the County Commissioners in a quasi-judicial proceeding constitutes acting "in a judicial capacity" under Rule 3.4(g), a conflict that, unlike those under 3.4(b) and (c), cannot be waived.

Currency note

This opinion was issued in 1993, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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 serving as a special assistant DA impute the prosecutor's clients to the lawyer's whole firm?

A: The opinion concluded no. It held that Rule 3.4(k)'s imputation does not reach common employment in a government agency, so the associate's prosecutorial role does not impute the District Attorney's other clients to the firm.

Q: What authority did the Commission rely on?

A: The opinion relied on the Reporter's Note to Rule 3.4(k), which excludes common government-agency employment from the affiliation concept, and on Superintendent of Insurance v. Attorney General, 558 A.2d 1197 (Me. 1989), read as holding Rule 3.4(k) inapplicable to the Attorney General's office.

Q: Was there any limit on the conclusion?

A: The opinion noted that a conflict could appear to the extent the associate were asked by the District Attorney to participate in advising the County Commissioners, and that the conclusion is inconsistent with the Commission's earlier Opinion No. 49.

Q: Did any member disagree?

A: Yes. One member dissented, reading Rule 3.4(k) to apply to public agencies and viewing the office's role in advising the County Commissioners in a quasi-judicial proceeding as acting "in a judicial capacity" under Rule 3.4(g), a non-waivable conflict.

Background and rules framework

The opinion interprets Maine Bar Rule 3.4(k), which imputes one lawyer's disqualification to others affiliated in the lawyer's firm, and Rules 3.4(a), 3.4(b), and 3.4(g). The Commission held that 3.4(k) does not reach common employment in a government agency. These provisions correspond to ABA Model Rule 1.10 (imputation of conflicts within a firm) and Model Rule 1.11 (special conflict rules for former and current government officers and employees).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.10 (imputation of conflicts); Model Rule 1.11 (former and current government officers)
• Maine Bar Rule 3.4(k), 3.4(a), 3.4(b), 3.4(g)

Statutes:

• 30-A M.R.S.A. § 272 (duties of assistant district attorneys); 30-A M.R.S.A. § 282 (District Attorney appearing for the county)

Cases:

• Superintendent of Insurance v. Attorney General, 558 A.2d 1197 (Me. 1989), imputation rule held inapplicable to the Attorney General's office

Other opinions cited:

• Maine Professional Ethics Commission Op. 49 (DA office and firm representing towns; noted as inconsistent); Ops. 36, 39, 42, 65, 70

See also

• Maine Ethics Op. 222: Conflicts of Interest in Prosecutorial Applications
• Maine Ethics Op. 131: Partner as Register of Probate
• ABA Formal Op. 509: Confidential Government Information and Disqualification

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89835

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: February 3, 1993

Facts

The District Attorney of X County had asked Law Firm A to participate in the following program. The District Attorney will appoint associates of Law Firm A as "Special Assistants" to the District Attorney on a case-by-case basis. Each Special Assistant will handle only the criminal case(s) assigned to him or her and will have the duties of preparing the case and conducting the trial. Although it has been suggested that the Special Assistant will have no prosecutorial discretion,[1] we interpret this as a statement that the Special Assistant will not engage in the pre-trial plea-bargaining process. Neither will the Special Assistants have any participation in the non-criminal aspects of the District Attorney's jurisdiction.

Law Firm A represents one or more municipalities in the County of X and it is possible that these municipalities may have matters which come before the County Commissioners.

Question

Under these circumstances, is Law Firm A disqualified from representing client municipalities before the County Commissioners?

Answer

No.

Discussion

The statutory authority for appointment of assistant district attorneys makes no distinction between "special" and ordinary assistant district attorneys. The duties of assistant district attorneys are set forth in 30-A MRSA Sec. 272. They include the obligation to "assist the District Attorney in the ordinary duties of that office.

30-A MRSA Sec. 282 requires that the District Attorneys appear for the counties in any case in which ". . . official acts of the called into question . . ." Although the statute authorizes the County Commissioners to "employ other counsel," the Commissioners rely as a practical matter upon the office of the District Attorney and its staff for advice in the discharge of their duties.

This Commission and the Grievance Commission have had several occasions to apply the Bar Rules in the context of various relationships between District Attorneys and their assistants and members of the private bar.[2]

Although the provisions of Bar Rules 3.4(a) and 3.4(b) extend the disqualification of a lawyer to all members of a lawyer's firm, Rule 3.4(k), in order for a conflict to arise upon the facts posited here, it would be necessary for this Commission to find that the provisions of Rule 3.4(k) apply to common employment in a government agency such as a District Attorney's Office. The Commission is of the opinion that Rule 3.4(k) does not apply to common employment in a government agency. Two sources of authority compel the Commission to reach this conclusion. First, the Reporter's Note accompanying the adoption of the Bar Rule states as much, without elaboration.[3] Second, this view is consistent with the opinion of the Law Court in Superintendent of Insurance v. Attorney General, 558 A.2d 1197 (Me. 1989). Although the Law Court did not expressly cite Rule 3.4(k), the conclusion reached in that case implicitly and necessarily holds that subdivision (k) of Rule 3.4 has no applicability to the Attorney General's Office.

Since, under this analysis, the associate of Law Firm A cannot be said to automatically represent every other "client" of the District Attorney's Office, except to the extent that the associate might be requested by the District Attorney to participate in advising the County Commissioners, no conflict of interest would appear.

In rendering this opinion we recognize that this conclusion is inconsistent with the opinion rendered in Opinion No. 49.

Dissent

One member of the Commission dissents from this opinion, and would hold that Rule 3.4(k) applies to public agencies; that Superintendent of Insurance v. Attorney General, supra is an unique case based in significant part upon the peculiar constitutional status of the Attorney General; and that the role of the District Attorney's Office in advising the County Commissioners in a quasi-judicial proceeding constitutes acting "in a judicial capacity" within the meaning of Rule 3.4(g) and that, unlike the conflict situations covered by 3.4(b) and (c), the 3.4(g) conflict cannot be waived.

Footnotes

[1] We think it is impossible for an attorney to be trying cases on behalf of the state and avoid engaging in some plea-bargaining in the course of trial.

[2] Opinion No. 36, Assistant District Attorney and partner of his/her spouse; Opinion No. 39, Assistant District Attorney and his/her law partner; Opinion No. 42, Assistant District Attorney and his/her spouse; Opinion No. 49, Assistant District Attorney as member of firm representing Towns; Opinion No. 65, District Attorney and his/her sibling-in-law; Opinion No. 70, Assistant District Attorney and his/her spouse.

[3] "As used in this rule the term `lawyer affiliated with him or his firm' does not include . . . common employment in a government agency . . ."