Can a District Attorney defend county officers in a prisoner's civil rights suit while also prosecuting that same prisoner in a criminal case?

Plain-English summary

The Commission was asked whether a District Attorney may serve as counsel for the County Sheriff and a County Commissioner, the defendants in a civil action brought by a county jail prisoner alleging violation of his constitutional rights in the administration of the jail, while at the same time prosecuting a criminal case against that same prisoner.

The Commission concluded that, under these circumstances, the District Attorney should disqualify himself from representing the county officers in one of the two pending actions, because of the conflict, or at least the potential for conflict, between his civil clients' interests and the public interest in the criminal prosecution. It noted that Title 30 M.R.S.A. section 501 expressly authorizes the County Commissioners to employ other counsel in civil actions involving the County when the public interest so requires, and that the Attorney General could be asked to prosecute the criminal case; because of the inherent conflict, the Bar Rules and the public interest require independent counsel in one of the two cases.

The opinion rested on Maine Bar Rule 3.4(b) (conflict of interest) and Rule 3.4(c) (multiple employment forbidden). The District Attorney's representation of the county officials in the civil action is likely to involve him in representing differing interests: those of his civil clients and the public interest in the prosecution. As a practical matter, the Commission observed, particularly if the District Attorney is simultaneously plea bargaining in the criminal case and negotiating settlement in the civil action, it would be extremely difficult, if not impossible, to represent these differing interests separately and independently, creating a real possibility that one interest could be compromised for the sake of the other. The Commission therefore answered the question in the negative.

Currency note

This opinion was issued in 1980, 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 Treat this page as historical context, not current guidance.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 DA defend county officers in an inmate's lawsuit while prosecuting that inmate?

A: The opinion concluded no. The conflict between the civil clients' interests and the public interest in the prosecution requires the DA to disqualify himself from one of the two cases under Rules 3.4(b) and 3.4(c).

Q: Why is simultaneous handling such a problem?

A: The opinion concluded that representing differing interests at once, particularly while plea bargaining in the criminal case and negotiating settlement in the civil case, makes truly independent representation of each nearly impossible, risking that one interest is compromised for the other.

Q: What is the way out?

A: The opinion noted the County Commissioners may employ other counsel under 30 M.R.S.A. section 501, or the Attorney General could be asked to prosecute, so independent counsel must be retained in one of the two cases.

Background and rules framework

The opinion interprets Maine Bar Rule 3.4(b) (conflict of interest) and Rule 3.4(c) (multiple employment forbidden where independent judgment is likely to be adversely affected or differing interests represented), as applied to a District Attorney. It corresponds to Model Rule 1.7 (concurrent conflicts of interest). The analysis turns on the divergence between the county officials' interests as civil defendants and the public's interest in the criminal prosecution of the same person.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts of interest)
• Maine Bar Rules 3.4(b), 3.4(c)

Statutes:

• 30 M.R.S.A. section 501 (County Commissioners may employ other counsel in civil actions involving the County)

See also

• Maine Ethics Op. 29: Commissioner-Lawyer vs. District Attorney
• Maine Ethics Op. 25: When the Prosecutor's Partner Sues the Driver the Prosecutor Convicted
• Maine Ethics Op. 6: Recusing the Whole DA's Office When a Prosecutor Will Be a Witness

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89423

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: April 2, 1980

Question

Is it permissible under the Maine Bar Rules for a District Attorney to serve as counsel for the defendants, the County Sheriff and a County Commissioner, in a civil action brought by a prisoner in the County Jail alleging the violation of constitutional rights in the administration of the County Jail while at the same time the District Attorney is prosecuting a criminal case against the prisoner, the Plaintiff in that action?

Opinion

It is the opinion of the Grievance Commission that under the circumstances presented, the District Attorney should disqualify himself from representation of the County officers in one of the pending actions because of the conflict, or at least the potential for conflict, between the interests of his clients in the civil action and the interest of the public in the prosecution of the criminal case.

Title 30 M.R.S.A. § 501 expressly authorizes the County Commissioners to employ other counsel in civil actions involving the County if in their judgment the public interest so requires. Moreover, the Attorney General could be requested to prosecute the pending criminal case because of the conflict with the prisoner's civil action. The Commission believes that because of the conflict of interest inherent in this situation, the Maine Bar Rules and the public interest require that independent counsel be retained in one of the two cases.

The Commission's opinion is based on Maine Bar Rule 3.4(b) (Conflict of Interest) and 3.4(c) (Multiple Employment Forbidden). The District Attorney's representation of the County officials in the civil action is "likely to involve him in representing different interests," i.e., the interests of his clients in the civil action and the interest of the public in the prosecution of the criminal case. As a practical matter, particularly if the District Attorney is engaged simultaneously in plea bargaining in the criminal case and settlement negotiations in the civil action, it would be extremely difficult, if not impossible, for the District Attorney to separately and independently represent these two differing interests, and there is therefore a real possibility that one of those interests could be compromised for the sake of the other.

Accordingly, the Commission answers the question presented in the negative.