Can a city prosecutor privately represent a person to restore rights that person lost as a result of the prosecutor's own prosecution?

Plain-English summary

A city prosecutor, employed by a municipality, had prosecuted an individual in the lower court, and the individual lost driving privileges as a result. The Committee was asked whether the prosecutor could then accept private employment from that individual to seek reinstatement of the driving privileges in circuit court.

The opinion applies Rule 1.11, which bars a lawyer from representing a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee. It notes the prosecutor had apparently not left the city's employment, and adds that Rule 1.7(a) prohibits representation directly adverse to another client, and Rule 1.7(b) prohibits representation that may be materially limited by the lawyer's responsibilities to another client or third person or by the lawyer's own interests. The opinion concludes the attorney cannot ethically represent the individual he prosecuted in an action to restore rights lost as a result of that prosecution.

In practice

Under this opinion, a prosecutor cannot privately represent the same person he prosecuted in a matter to undo the consequences of that prosecution. The opinion applies Rule 1.11 to the prosecutor's personal and substantial participation in the underlying matter as a public officer, and reinforces the conclusion with Rule 1.7's limits on representations adverse to or materially limited by other responsibilities, noting the prosecutor still held the city position.

Common questions

Q: Can a city prosecutor later be hired privately to reverse the consequences of a case he prosecuted?

A: No. The opinion concludes the prosecutor cannot ethically represent the individual he prosecuted to restore rights lost as a result of that prosecution.

Q: Which rule controls?

A: Rule 1.11, which bars representing a private client in a matter in which the lawyer participated personally and substantially as a public officer or employee. The opinion also cites Rule 1.7(a) and (b).

Q: Does it matter that the prosecutor still works for the city?

A: The opinion notes the prosecutor had apparently not left the city's employment and brings in Rule 1.7's restrictions on representations adverse to, or materially limited by, his responsibilities to the municipality.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.11 (successive government and private employment; Model Rule 1.11) and Rule 1.7(a) and (b) (concurrent conflicts of interest; Model Rule 1.7). Rule 1.11 bars private representation in a matter in which the lawyer participated personally and substantially as a public officer; Rule 1.7 addresses representations directly adverse to another client or materially limited by other responsibilities or the lawyer's own interests.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / MS RPC 1.11 (former government lawyer; personal and substantial participation)
• MR 1.7 / MS RPC 1.7(a), 1.7(b) (concurrent conflicts; direct adversity and material limitation)

See also

• MS Bar Ethics Op. 87: Prosecutor's Partner Defending a Criminal Case
• MS Bar Ethics Op. 79: Defending a Co-Defendant Arrested Through Another Client's Cooperation

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/55/
• Original PDF: https://www.msbar.org/media/1085/et_op_55-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 55

OF THE MISSISSIPPI BAR

RENDERED November 12, 1979

AMENDED April 06, 2013

CONFLICT OF INTEREST - GOVERNMENT ATTORNEY - Prosecuting attorney may not represent individual in reinstatement of driver's license lost as result of attorney's prosecution in lower court.

The Ethics Committee of The Mississippi Bar has been asked to render an opinion concerning the ethical propriety of a prosecuting attorney representing an individual in a circuit court for reinstatement of driving privileges after having lost the driving privileges as a result of the attorney's prosecutorial work in the lower court.

The concern here is whether an attorney, acting as a city prosecutor and employed by a municipality, can with propriety prosecute an individual for an offense, and then accept private employment from that individual and seek to restore rights lost during that prosecution.

Rule 1.11 of the Mississippi Rules of Professional Conduct (MRPC) provides that 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.

In the instant matter, the prosecuting attorney has apparently not left the employment of the city as prosecuting attorney. Rule 1.7(a), MRPC, provides that a lawyer shall not represent a client if the representation of that client will be directly adverse to another client. Rule 1.7(b), MRPC, provides that a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests.

The Committee is of the opinion the attorney cannot ethically represent the individual he prosecuted in an action to restore rights lost as a result of that prosecution.