Can a law partner of the city prosecutor defend a criminal defendant if the prosecutor was never personally involved in the case?

Plain-English summary

A firm's named partner served as city prosecuting attorney, charged with prosecuting misdemeanors and holding felony preliminary hearings in municipal court. Another partner in the same firm was retained to defend a criminal defendant charged in that municipal court. The prosecuting attorney had no involvement with the case and no knowledge of its facts. The question was whether the defense partner could take the case if it were transferred to county court before the prosecutor became involved.

The opinion concludes that he could not. It reasons that the controlling issue is whether the city prosecuting attorney himself could defend the charges. Because the prosecuting attorney's client is the municipality (Rule 1.13), and the municipality's interests are directly adverse to the defendant's, Rule 1.7(a) would prohibit the prosecutor from defending the case. Rule 1.10(a) then imputes that prohibition to the whole firm: while lawyers are associated in a firm, none of them may knowingly represent a client when any one of them practicing alone would be prohibited from doing so. The transfer to county court does not cure the conflict.

In practice

Under this opinion, where one partner serves as a municipal prosecutor, no other lawyer in that firm may defend a criminal case brought in the same municipal court, regardless of whether the prosecutor personally touched the matter or whether the case is later moved to county court. The opinion treats the prosecutor's own disqualification under Rule 1.7 as the trigger and applies Rule 1.10's imputation rule to bar the partner. The analysis turns on the identity of the prosecutor's client (the municipality) and the direct adversity between that client and the criminal defendant.

Common questions

Q: Can my law partner defend a criminal case if I am the city prosecutor but had nothing to do with the case?

A: No. The opinion holds that the prosecutor's disqualification under Rule 1.7 is imputed to the entire firm under Rule 1.10(a), so a partner cannot take the defense even if the prosecutor never touched the file.

Q: Does transferring the case from municipal court to county court remove the conflict?

A: No. The opinion states the partner may not defend the case "even if the case is transferred to the county court."

Q: Why is the city prosecutor conflicted out of defending the case at all?

A: Because the prosecutor's client is the municipality (Rule 1.13), and the municipality's interest in the prosecution is directly adverse to the defendant's, which Rule 1.7(a) prohibits.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.7(a) (concurrent conflicts of interest; Model Rule 1.7), Rule 1.13 (organization as client; Model Rule 1.13), and Rule 1.10(a) (imputation of conflicts; Model Rule 1.10). It identifies the municipality as the prosecutor's client under Rule 1.13, finds direct adversity under Rule 1.7(a), and applies Rule 1.10(a)'s firm-wide imputation. The version of Rule 1.10(a) the opinion quotes imputes conflicts arising under "Rules 1.7, 1.8(c), or 2.4."

Citations and references

Rules of Professional Conduct:

• MR 1.7 / MS RPC 1.7(a) (concurrent conflict of interest; direct adversity)
• MR 1.10 / MS RPC 1.10(a) (imputation of conflicts within a firm)
• MR 1.13 / MS RPC 1.13 (organization as client; the municipality is the prosecutor's client)

See also

• MS Bar Ethics Op. 80: One Lawyer for Both Spouses in a No-Fault Divorce

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/87/
• Original PDF: https://www.msbar.org/media/1094/et_op_87-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 87

OF THE MISSISSIPPI BAR

RENDERED September 23, 1983

AMENDED April 06, 2013

CONFLICT OF INTEREST - GOVERNMENT ATTORNEYS - A partner of the City Prosecuting Attorney may not defend a client on charges brought against him in Municipal Court even if the case is transferred to County Court.

The Ethics Committee has been asked to render an opinion of the following facts:

Attorney X, of the firm of X, Y & Z, is the City Prosecuting Attorney, having been appointed by the mayor and Board of Aldermen. As such, attorney X is charged with responsibility of prosecuting misdemeanors and holding felony preliminary hearing on all criminal matters prosecuted before the Municipal Court.

Attorney Z has a general civil and criminal trial practice and is retained by a criminal defendant upon charges brought against him in the Municipal Court.

Lawyer X, the City Prosecuting Attorney, does not have any involvement with the case, has not prepared or helped to prepare any warrants, etc., and has no knowledge of the facts of the case.

If the case is transferred to County Court (Justice Court) prior to any involvement by lawyer X, may lawyer Z represent the client?

The Committee is of the opinion that a partner of the municipal prosecuting attorney may not defend a client against criminal charges brought against him in the municipal court even if the case is transferred to the county court. The pertinent issue is whether or not the city prosecuting attorney could defend criminal charges under such circumstances, because Rule 1.7(a) of the Mississippi Rules of Professional Conduct (MRPC) advises that:

A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes:

(1) the representation will not adversely affect the relationship with the other client; and

(2) each client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the adverse representation and the advantages and risks involved.

The municipal prosecuting attorney's client is the municipality. See Rule 1.13, MRCP. Therefore, the prosecuting attorney could not defend a client against the criminal charges brought against him in municipal court because the municipality's interests are directly adverse to the defendant's. Rule 1.10(a), MRPC, provides that "[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), or 2.4." Attorney Z is ethically bound not to accept employment in the case because his law partner cannot accept employment.