Can a part-time prosecutor take private employment in a civil case built on the same facts he investigated as a public prosecutor?

Plain-English summary

The opinion (rendered November 30, 1978, and amended April 6, 2013) addressed whether a prosecuting attorney who is paid by the State or a political subdivision to investigate facts, interview witnesses, and prepare proceedings may then accept private employment, based on the same factual situation and using the results of that investigation, to bring a civil action for damages or benefits.

The Committee gave two illustrations. In the first, an assistant county prosecuting attorney filed paternity suits against alleged fathers to recover aid to dependent children the county had paid; after an unsuccessful paternity suit, the mother sought to employ him to pursue death and Social Security benefits for the same mother and child. In the second, a prosecutor who investigated and filed criminal charges from an automobile accident at the State's expense then sought to use that investigatory knowledge as private counsel for the widow in a civil damages suit. In each, the lawyer entered the facts as the State's attorney and was paid by the State to investigate.

The opinion quoted MRPC 1.11, under which, except as law may expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. The Committee observed that in the scenarios the factual matter is basically the same, but the relief sought, and thus the controversy, is different. Calling it a very close ethical question, the Committee concluded that it would be in the best interest of the Bar that a prosecuting attorney not accept private employment to bring a civil action based on a factual situation he actively investigated and pursued as public prosecutor, so the public is not led to believe that the office gave him an advantage or that public funds financed an investigation producing private gain.

In practice

Under this opinion, a part-time prosecutor who personally investigated a matter at public expense should not take private employment to bring a civil action arising from that same factual situation. The Committee acknowledged MRPC 1.11 frames the analysis around personal and substantial participation as a public officer and the possibility of government-agency consent, but it resolved the close question against accepting the private engagement, emphasizing the need to avoid any public impression that the office or public funds produced private benefit.

Common questions

Q: Can a prosecutor later sue privately on facts he investigated for the State?

A: The opinion concluded he should not accept private employment to bring a civil action based on a factual situation he actively investigated and pursued while serving as public prosecutor.

Q: Does it matter that the civil case seeks different relief than the criminal or paternity matter?

A: Per the opinion, the factual matter is basically the same even though the relief sought, and thus the controversy, differs; the Committee still advised against the private engagement.

Q: What rule frames the question?

A: The opinion quoted MRPC 1.11, which bars a lawyer from representing a private client in a matter in which he participated personally and substantially as a public officer, unless the appropriate government agency consents after consultation.

Background and rules framework

The opinion interprets MRPC 1.11 (successive government and private employment), which corresponds to Model Rule 1.11. The Committee treated the question as a close one under that rule and resolved it on the broader interest in public confidence rather than on a finding that Rule 1.11 flatly prohibited the work.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 1.11 (successive government and private employment) (cf. Model Rule 1.11)

See also

• ABA Formal Op. 97-409: Ex-Government Lawyer Conflicts
• MS Bar Ethics Op. 31: County Board & Criminal Defense
• ABA Formal Op. 97-405: Government Entity Conflicts

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/45/
• Original PDF: https://www.msbar.org/media/1079/et_op_45-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 45

OF THE MISSISSIPPI BAR

RENDERED November 30, 1978

AMENDED April 06, 2013

CONFLICT OF INTEREST - GOVERNMENT ATTORNEYS - A part time prosecuting attorney should not accept private employment arising from any factual situation which he was actively engaged in as prosecuting attorney in the employ of the State.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion of the ethical propriety of the following question. When a prosecuting attorney has been employed by a political subdivision of the State of Mississippi to prosecute an action, and he is paid by the political subdivision to investigate the facts, interview witnesses, and prepare legal proceedings, can he in turn, accept employment as a private attorney, based on the same factual situation, using the results of his prior investigation, institute a civil action for recovery of monetary damages or benefits.

The immediate question involves an assistant county prosecuting attorney who filed paternity suits against alleged fathers for recovery of aid to dependent children previously paid out by the county. After an unsuccessful paternity suit, the attorney has been employed by the mother to institute a civil action for recovery of death benefits and social security benefits. His clients would be the same mother and child in whose name (along with the county) he had previously filed the paternity suit. He was paid by the county to investigate the facts, and he made a full investigation at the expense of the county.

In a larger sense, the question could include a prosecuting attorney who, at the state's expense, investigated a matter, filed criminal proceedings based on an automobile accident, and then, using the same investigatory knowledge gained from the criminal suit, filed a civil action as a private attorney for the widow of the deceased (killed in the automobile accident) for recovery of damages.

In each situation, the attorney employed part time by the State of Mississippi or its political subdivision, and his entry into the facts and parties was as state's attorney and he was paid by the state to investigate the facts, etc.

The question before this committee is whether or not an attorney can with propriety enter into a factual situation as an employee of the State, prosecute a criminal action based thereon and then accept private employment to institute civil action based on the same factual matter.

Rule 1.11 of the Mississippi Rules of Professional Conduct (MRPC) states: "except as law may otherwise expressly permit, a lawyers shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation."

In this situation the factual matter is basically the same, but the relief sought and thus, the controversy is different. However, an attorney should not allow himself to be placed in a position which could be misconstrued by the public. The Bar should strive to remove any possible basis for unfavorable public opinion. The public should not be allowed to believe that a county attorney, or any prosecuting attorney, would be in a better position to render legal service, merely because of his office. Nor should the public be allowed to believe that public funds were used to finance an investigation which resulted in direct monetary gain to the client or to the attorney. It could be construed that such a prosecuting attorney was using his office to solicit business improperly.

While this is a very close ethical question, this Committee feels and must find that it would be to the best interest of the Bar that a prosecuting attorney should not accept private employment to institute a civil action which is based upon a factual situation which he actively investigated and pursued while serving as public prosecutor. A lawyer should, by his actions, promote public confidence in our system and in the legal profession.