Can a lawyer whose firm represents the government or prosecution accept a court appointment to defend a criminal case?

Plain-English summary

The committee was asked whether a partner of a law firm that represents the government or prosecution may accept a court appointment for criminal defense. It answered "possibly," explaining that several rules can govern depending on how the public and private representations line up.

Where a lawyer joined a private firm after representing the government, the opinion applied Rule 1.11(a) and (b): the lawyer may not represent a private client in a matter in which the lawyer participated personally and substantially as a public officer unless the government agency consents, and the firm may continue only if the disqualified lawyer is screened from the matter, takes no part of the fee, and written notice goes to the agency. Where a lawyer moved into government work after private practice, the opinion applied Rule 1.11(c)(1), barring participation in a matter the lawyer handled personally and substantially in private practice. The individual lawyers' duties were governed by Rules 1.6 (confidentiality), 1.7 (current-client conflicts), and 1.9 (former-client conflicts).

The committee concluded that no per se conflict exists if the firm's lawyers undertake criminal defense as long as applicable screening and notice requirements are met. Each situation has to be examined on its facts: a lawyer may take criminal-defense work if the governmental representation does not conflict with the criminal case and the lawyer holds no confidential information from the government work that would conflict with the defense. Confidential information obtained in either role may not later be used against that client or the government. The opinion added that simultaneous representation of prosecution and defense, even in unrelated cases, often presents insurmountable problems under Rule 1.7 and is likely to be prejudicial to the administration of justice under Rule 8.4(d).

Currency note

This opinion was issued in 1985, before the State Bar of Montana's adoption of the 2004 revisions to the 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 Treat this page as historical context, not current guidance.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: Is there an automatic conflict when a government firm's lawyer takes a criminal-defense appointment?

A: No. The opinion concluded that no per se conflict exists, provided any applicable screening and notice requirements are met and the facts are examined individually.

Q: When does Rule 1.11 require screening and notice?

A: When a lawyer who participated personally and substantially in a matter as a public officer moves to a private firm, Rule 1.11(a) requires that the disqualified lawyer be screened, take no part of the fee, and that written notice go to the government agency before the firm continues that matter.

Q: Can a lawyer hold both prosecution and defense roles at the same time?

A: The opinion states that simultaneous representation of prosecution and defense, even in unrelated cases, often presents insurmountable problems under Rule 1.7 and is likely to be prejudicial to the administration of justice under Rule 8.4(d).

Background and rules framework

The opinion interprets Montana's Rules of Professional Conduct on successive government and private employment (Rule 1.11; Model Rule 1.11), confidentiality (Rule 1.6; Model Rule 1.6), the general conflict rule (Rule 1.7; Model Rule 1.7), former-client conflicts (Rule 1.9; Model Rule 1.9), and conduct prejudicial to the administration of justice (Rule 8.4(d); Model Rule 8.4(d)). The committee quoted the text of Rules 1.11, 1.6, 1.7, and 1.9 as then in force.

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 1.11 (successive government and private employment) / Model Rule 1.11
• Mont. R. Prof. Cond. 1.6 (confidentiality), 1.7 (general conflict rule), 1.9 (former client) / Model Rules 1.6, 1.7, 1.9
• Mont. R. Prof. Cond. 8.4(d) (conduct prejudicial to the administration of justice) / Model Rule 8.4(d)

See also

• State Bar of Montana Ethics Op. 940330: Former County Attorney's Claim Against the County
• State Bar of Montana Ethics Op. 880211: Civil Representation and Prosecution
• ABA Formal Op. 97-409: Successive Government and Private Employment

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/Site Resources/Ethics Opinions/1.6 confidentiality/850820.pdf

Original opinion text

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

ETHICS OPINION
QUESTION PRESENTED: Can a partner of a law firm which represents the Government/Prosecution accept a court appointment for Criminal Defense?

ANSWER: Possibly.

ANALYSIS: Several rules of professional conduct may govern this situation. When a lawyer has joined a private firm after having represented the government, the situation is governed by Rule 1.11(a) and (b) as follows:

Rule 1.11 Successive Government and Private Employment

(a) Except as law may otherwise 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. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

1. The disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
2. Written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

(b) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned to no part of the fee therefrom.

When a lawyer represents the government after having served private clients, the situation is governed by Rule 1.11(c)(1) as follows:

(c) 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 nongovernmental 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.

The individual lawyers involved are governed by Rules 1.6, 1.7 and 1.9 as follows:

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

1. to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or
2. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegation in any proceeding concerning the lawyer's representation of the client.

Rule 1.7 Conflict of Interest: General Rule

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

1. the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
2. each client consents after consultation.

(b) 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, unless:

1. the lawyer reasonably believes the representation will not be adversely affected; and
2. the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

Rule 1.9 Conflict of Interest: Former Client

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or

(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.

Pursuant to the above rules, a per se conflict of interest does not exist if members of firm A or firm B undertake criminal defense so long as an applicable screening and notice requirement are met. Each situation must be examined in light of the factual situation and individuals involved. An attorney in the firm may undertake criminal defense work if governmental representation doesn't conflict with representation in the criminal case and if the attorney has not obtained confidential information in governmental representation which would conflict with the criminal defense work. If the attorney undertakes criminal defense he or she cannot use any confidential information obtained through representation of a criminal defendant against that client or the government in a subsequent governmental representation. Simultaneous representation of prosecution and defense, even though in unrelated cases, often presents insurmountable problems under Rule 1.7 and is likely to be prejudicial to the administration of justice under Rule 8.4(d).

                       THIS OPINION IS ADVISORY ONLY