If one lawyer in a firm becomes a part-time assistant district attorney, can the firm's other lawyers keep representing criminal defendants in the state's courts?
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This page answers the general question as of 1983. Ezel answers yours: whether it's allowed on your facts, under the current Maine Rules of Professional Conduct, with citations.
Plain-English summary
A member of a law firm with offices in several counties was offered a position as a part-time assistant district attorney in one of the prosecutorial districts. The firm already represented criminal defendants, as well as inmates at the State Prison. The question was whether the firm's other lawyers could continue to represent criminal defendants in any Maine court.
The Commission noted that, while it had no authority to interpret statutes or rules of court other than the Bar Rules, it could not adequately answer the question without addressing Maine Rule of Criminal Procedure 53A. That rule provides that no attorney for the State, and no attorney holding himself out as a partner or associate of that attorney, shall be retained, employed, or act as attorney for any defendant in any criminal proceeding in any Maine court, or in any civil case involving the same facts.
The Commission explained that this prohibition reflects the fundamental importance of avoiding any appearance of impropriety in the prosecution of criminal cases. The Rule permits no exceptions; it does not matter that the assistant district attorney and his associates may practice in different districts, and there is no provision for waiver or consent by the parties. Because the adversarial relationship of prosecutor and criminal defense attorney is of such paramount importance to the administration of criminal justice, Rule 53A does not grant exceptions that might otherwise apply (the Commission contrasted Maine Bar Rules 3.4(b) and 3.4(k)). The Commission concluded the firm could not continue to represent defendants in pending criminal proceedings, and that the answer made it unnecessary to discuss the related questions raised.
Currency note
This opinion was issued in 1983, 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 Treat this page as historical context, not current guidance.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: Can a firm keep defending criminal cases after one lawyer becomes a part-time assistant DA?
A: The opinion concluded no, at least for pending criminal proceedings. Maine Rule of Criminal Procedure 53A bars the prosecutor's partners and associates from acting for any criminal defendant in any Maine court.
Q: Does it matter that the prosecutor and the firm practice in different districts?
A: No. The opinion stated that Rule 53A has no exceptions and applies even where the assistant district attorney and his associates practice in different prosecutorial districts.
Q: Can the client or the prosecutor's office consent to waive the conflict?
A: No. The opinion noted that Rule 53A contains no provision for waiver or consent by the parties; the prohibition is absolute.
Background and rules framework
The decisive authority is Maine Rule of Criminal Procedure 53A, a rule of court rather than a Bar Rule, which disqualifies the prosecutor and anyone held out as the prosecutor's partner or associate from criminal defense work. The Commission framed the underlying ethics concern in terms of avoiding any appearance of impropriety and the conflict between adverse interests, distinguishing the more flexible conflict provisions of Maine Bar Rules 3.4(b) (employment impairing independent judgment) and 3.4(k) (appearance of impropriety). These correspond to Model Rule 1.7 (conflicts of interest) and the imputation principle of Model Rule 1.10.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.7 (conflicts of interest); Model Rule 1.10 (imputation)
- Maine Bar Rules 3.4(b), 3.4(k)
Court rules:
- Maine Rule of Criminal Procedure 53A (disqualification of a prosecutor's partners and associates)
See also
- Maine Ethics Op. 38: County Commissioner Suing Towns in His County
- Maine Ethics Op. 42: Prosecution by Spouse of a Firm Member
- Maine Ethics Op. 49: Part-Time D.A.'s Private Clients
- Maine Ethics Op. 65: Defense by Attorney Whose Spouse Is Related to the Prosecutor
Source
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Issued by the Professional Ethics Commission
Date Issued: June 2, 1983
Facts
A member of a law firm with offices located in several counties has been offered a position as a part-time Assistant District Attorney in one of the Prosecutorial Districts. The firm presently represents criminal defendants as well as inmates at the State Prison.
Question
May other members of the firm continue to represent criminal defendants as defendants in any court in the State?
Opinion
Although the Commission has no authority to express its opinion on the interpretation of statutes or Rules of Court other than the Bar Rules, an adequate response to the question raised cannot ignore Rule 53A, Maine Rules of Criminal Procedure which states:
No attorney for the State . . . and no attorney holding himself out as a partner or associate (of the attorney) . . . shall be retained or employed or shall act as attorney for any defendant in any criminal proceeding in any court of this State or in any civil case involving the same facts.
The prohibition reflects the fundamental importance of the avoidance of any appearance of impropriety in the prosecution of criminal cases. There are no exceptions permitted by the Rule. It matters not that the Assistant District Attorney and his associates may practice in different districts nor is there any provision for waiver or consent by the parties.
The adversarial relationship of the prosecutor and criminal defense attorney is clearly a matter of such paramount importance in the administration of criminal justice that Rule 53A does not grant exceptions that might otherwise apply in other circumstances (cf. Maine Bar Rules 3.4(b), 3.4(k)). This means that the firm cannot continue to represent defendants in pending criminal proceedings.
In light of the answer to this question, it is unnecessary to discuss related questions raised by the inquiry.
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