Can a prosecutor represent someone in a civil matter while investigating possible criminal charges against that same person?

Plain-English summary

The committee considered facts that later gave rise to the Montana Supreme Court's decision in Lorash v. Epstein, 236 Mont. 21, 767 P.2d 1335 (1989). It addressed whether a prosecuting attorney may represent a client in civil matters while investigating possible criminal charges against that client, whether refusing representation would be unethical, and when representation ends after a lawyer files a mechanic's lien and notifies the client of the statute of limitations.

On the first question, the committee answered no. Quoting the comment to Rule 1.7 that "loyalty is the essential element in the lawyer's relationship to a client," it concluded that the loyalty requirement forbids a lawyer from simultaneously representing a client and acting as the client's adversary, even in unrelated matters. On the second, because the first answer was no, the committee said the question need not be reached, but noted that assuming a lawyer may withdraw, declining representation is not an ethical violation: a lawyer may refuse to represent a client unless ordered by a tribunal, and on withdrawal must take reasonable steps to protect the client's interests under Rule 1.16.

On the third and fourth questions, the committee held the lawyer had no continuing duty, after preparing and filing the lien and notifying the client of the limitations period, to keep representing the claimant or to seek the former client out and advise filing a case. The committee reasoned that representation must end at some point; otherwise a lawyer would have to monitor a client's activities for life and there would be no "former client." It concluded that representation ends when the attorney files the lien and notifies the client of the statute of limitations, and that an attorney is not bound to seek out a client to remind them to keep their affairs in order.

Currency note

This opinion was issued in 1988, 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 Treat this page as historical context, not current guidance.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: Can a prosecutor represent a person civilly while investigating criminal charges against them?

A: No. The opinion concludes that loyalty under Rule 1.7 bars a lawyer from simultaneously representing a client and acting as the client's adversary, even in unrelated matters.

Q: Is it unethical to decline the representation?

A: No. The opinion states a lawyer may refuse to represent a client unless ordered by a tribunal, and that withdrawal requires taking reasonable steps to protect the client's interests under Rule 1.16.

Q: When does the representation end after filing a lien?

A: The opinion concludes representation ends when the attorney files the lien and notifies the client of the statute of limitations; the lawyer need not seek the former client out to advise filing a case.

Background and rules framework

The opinion interprets Montana Rule of Professional Conduct 1.7 (Conflict of Interest: General Rule; Model Rule 1.7) and its loyalty comment, and Rule 1.16 (Declining or Terminating Representation; Model Rule 1.16). It was rendered on the facts underlying Lorash v. Epstein, 236 Mont. 21, 767 P.2d 1335 (1989).

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 1.7 (conflict of interest: general rule; loyalty) / Model Rule 1.7
• Mont. R. Prof. Cond. 1.16 (declining or terminating representation) / Model Rule 1.16

Cases:

• Lorash v. Epstein, 236 Mont. 21, 767 P.2d 1335 (Mont. 1989), facts underlying this opinion

See also

• State Bar of Montana Ethics Op. 850820: A Prosecution Firm Taking a Criminal-Defense Appointment
• State Bar of Montana Ethics Op. 860903: A County Attorney Suing a State Department for a Private Client
• 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/880211.pdf

Original opinion text

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

QUESTIONS PRESENTED in reference to Lorash v. Epstein [this opinion was rendered on the facts giving rise to the decision of the Montana Supreme Court in Lorash v. Epstein, 236 Mont. 21, 767 P.2d 1335 (1989)]:

1. May a prosecuting attorney represent a client in civil matters when the prosecuting attorney is investigating the possibility of filing criminal charges against the client?

2. If the answer to the above is yes, is it a violation of any ethical obligation to refuse representation?

3. Does the attorney have a duty or obligation following the preparation and filing of a mechanics lien, and notification of the applicable statute of limitation, to continue to represent the lien claimant? To affirmatively seek out the former client and advise the filing of a case?

4. Where does representation cease?

ANSWERS:

1. No.

2. No.

3. No.

4. Representation ends when the attorney files the lien and notifies the client of the statute of limitations.

ANALYSIS:

1. "Loyalty is the essential element in the lawyer's relationship to a client." (Model Rule 1.7 -- hereinafter MR, see Comment No. 1.) The requirement of loyalty dictates that a lawyer cannot simultaneously represent a client and act as his adversary, even in unrelated matters. (See generally, MR 1.7 - Conflict of Interest.)

2. Since the answer to No. 1 is "no", this question need not be discussed. But, assuming the partner may withdraw, it is not an ethical violation to refuse representation. A lawyer may refuse to represent a client unless ordered to do so by a tribunal. If the lawyer may withdraw (assuming a lawyer-client relationship exists) the lawyer must take reasonable steps to protect a client's interest. (See generally, MR 1.16.)

3. At some point, the representation must end. If the rule were otherwise, a lawyer would have to monitor a client's activities for the rest of the client's life. There would be no such individual as the "former client."

4. An attorney is not bound to seek out a client and continually remind him to keep his affairs in order.

                                                                          THIS OPINION IS ADVISORY ONLY