Can a lawyer newly hired to handle appeals for a county prosecutor's office keep representing a criminal defendant on appeal when the prosecution was run by the Attorney General in another county and the new office will not appear in the case?

Plain-English summary

The Attorney General charged a defendant who lived in County 1, and the case was tried in County 2. The defendant retained Lawyer A at trial, then retained the inquiring lawyer (Lawyer B) to handle the appeal after the trial court dismissed the charges and the Attorney General appealed. Both lawyers were in private practice at the time. Lawyer A later became the Chief Prosecuting Attorney for County 1 and hired the inquirer to handle appeals for that office. The inquirer asked whether he or she had to withdraw from the defendant's appeal.

The opinion analyzed MRPC 1.11(c)(1), which bars a lawyer serving as a public officer from participating in a matter in which the lawyer participated personally and substantially while in private practice. Read in isolation, the rule could appear to bar any such participation, but the opinion explained that earlier opinions did not read it that harshly. The purpose of Rule 1.11(c), per RI-43, is to safeguard client loyalty and confidentiality and to prevent exploitation of public office for private advantage, concerns that arise when a lawyer acts on "both sides of the equation" by representing a private client and the governmental agency in the same matter.

Applying R-13 and RI-4, the opinion concluded the absolute bar was triggered only when the lawyer's governmental employer was also a party to the case. Here the County 1 prosecutor's office had not appeared and would not appear in the Court of Appeals; the state would continue to be represented by the Attorney General. While the appeal was a "matter" under MRPC 1.11(d)(1), the inquirer would not be participating in it as an assistant prosecuting attorney for County 1, so MRPC 1.11(c) did not prevent the continued representation. The opinion distinguished RI-152, where a former defense lawyer who was later elected prosecutor could not handle the appeal for the state.

Currency note

This opinion was issued in 1997, before later amendments to the Michigan 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 Treat this page as historical context, not current guidance.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: Does becoming a prosecutor automatically disqualify a lawyer from a matter handled in private practice?

A: No. The opinion concluded MRPC 1.11(c)'s bar is triggered when the lawyer's governmental employer is also a party to the matter, not whenever the lawyer earlier touched the matter in private practice.

Q: Why was the inquirer allowed to keep the defense appeal?

A: The opinion concluded the County 1 prosecutor's office was not a party to the appeal and would not appear in it; the Attorney General represented the state, so the inquirer would not be acting on both sides of the same matter.

Q: What is the concern Rule 1.11(c) protects against?

A: Per RI-43, the opinion identified safeguarding client loyalty and confidentiality and preventing exploitation of public office for private advantage as the rule's purposes.

Q: How did this differ from RI-152?

A: The opinion distinguished RI-152, where a former criminal-defense lawyer who later became prosecutor could not handle the appeal for the state, because there the lawyer would have been acting for the governmental party.

Background and rules framework

The opinion interpreted MRPC 1.11(c) (Model Rule 1.11), which governs successive government and private employment and bars a lawyer serving as a public officer from participating in a matter in which the lawyer participated personally and substantially while in private practice, subject to the rule's exceptions. It read that bar through prior opinions (R-13, RI-4, RI-43, RI-152) as applying when the lawyer's governmental employer is itself a party to the matter.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / MRPC 1.11(c) (successive government and private employment)

Other opinions cited:

• Michigan R-13: tribal-court prosecutor also defending in state courts
• Michigan RI-4: substantial participation under MRPC 1.11(a)
• Michigan RI-43: purpose of the public-officer conflict rule
• Michigan RI-152: former defense lawyer later elected prosecutor

See also

• Mich Ethics Op. RI-112: prosecutor whose office also serves as county counsel
• Mich Ethics Op. RI-283: prosecutor's office running a pro bono program
• Mich Ethics Op. RI-227: former guardian ad litem later representing a relative

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1165&Type=6

Original opinion text

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

RI-295

June 17, 1997

SYLLABUS

A lawyer who represented a client on an appeal while in private practice, may continue to represent the client after being hired to handle appeals for a county prosecutor's office, where the criminal case against the client was prosecuted in a different county by the Attorney General's office, and where the county prosecutor's office will not appear in the Court of Appeals.

References: MRPC 1.11(c); R-13; RI-4; RI-43; RI-152.

TEXT

The Attorney General brought criminal charges against a defendant who was located in County 1. The case was tried in County 2. The defendant retained Lawyer A in the criminal action. At that time Lawyer A was in private practice. The circuit court judge dismissed all criminal charges against the defendant and the Attorney General appealed. The defendant then retained Lawyer B (the inquirer) as defense counsel on the appeal. At the time, Lawyer B was also in private practice. Both parties have filed briefs in the Court of Appeals and are awaiting oral arguments. On January 1, Lawyer A became the Chief Prosecuting Attorney for County 1 and hired the inquirer to handle appeals for the prosecutor's office. The inquirer asks whether he/she must withdraw from representing the defendant in the court of appeals.

This issue is governed by MRPC 1.11(c)(1), which states:

"Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:

"(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or non-governmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter."

Viewed in isolation, the text of the rule would apparently prohibit a lawyer who is now serving as a public officer or employee from participating in any matter in which the lawyer participated personally and substantially while in private practice, regardless of whether the lawyer would be acting for the governmental agency or the private client, and regardless of whether the governmental agency is a party to the matter. However, previous ethics opinions which have interpreted the rule do not interpret it so harshly.

The purpose of Rule 1.11(c) is to "safeguard client loyalty and confidentiality and to preclude exploitation of public office for private advantage." RI-43. These concerns come into play when a lawyer seeks to act on "both sides of the equation," by representing a private defendant and the governmental agency in same matter. In R-13, a lawyer acting as a prosecutor for a tribal court was permitted to represent criminal defendants before other state courts so long as: (1) the lawyer did not defend persons currently under investigation or prosecution in the tribal court; (2) the lawyer did not defend matters in which the lawyer participated personally and substantially as a tribal lawyer unless the client and the government agency consented; and (3) the lawyer did not undertake defense cases which may give rise to violations of tribal law under the jurisdiction of the tribal court prosecutor. The lawyer was not permitted to prosecute in tribal court matters in which the lawyer personally and substantially participated as defense counsel in state courts, or matters which were substantially related and materially adverse to a former defense client absent the former client's consent. Thus, the lawyer in R-13 was only absolutely prohibited from representing a criminal defendant when the lawyer's other client, the governmental agency, was also a party in the case.

That is not the situation in this inquiry. Although the criminal defendant was charged in County 1, the defendant was tried in County 2 by the Attorney General, not by the office of the prosecuting attorney for County 1. Furthermore, it appears that the prosecuting attorney's office for County 1 has not and will not enter an appearance in the Court of Appeals and that the state will continue to be represented by the Attorney General's office. As was noted in RI-4 (interpreting MRPC 1.11(a)), "MRPC 1.11 is triggered by substantial participation 'for the 'matter' as assistant city attorney." See also RI-152, where a former criminal defense lawyer whose trial client was represented by successor counsel on appeal, could not handle the appeal for the state when subsequently elected prosecutor. While the case pending in the court of appeals is clearly a "matter" as defined in MRPC 1.11(d)(1), the inquirer will not be participating in the matter as an assistant prosecuting attorney on behalf of County 1. Therefore MRPC 1.11(c) does not prevent the inquirer from representing the defendant in the Court of Appeals.