Can a county attorney run a criminal investigation of a decedent when the deputy who shares his office is handling that decedent's estate?

Plain-English summary

The committee was asked whether a sitting county attorney, who had handled a decedent's estate since before his appointment, could conduct a criminal investigation involving that decedent. He shared his office with a part-time deputy county attorney who had begun the investigation before the present county attorney was elected. It answered no.

The committee treated the relationship between the county attorney and his deputy as analogous to the association of lawyers in a firm under Rule 1.10. It also pointed to Rule 1.17, which bars a part-time government lawyer from accepting other employment in which it would be possible to use confidential or privileged information obtained through the government job. It reasoned that although the deputy could not properly have agreed to represent the estate after becoming a deputy, here he was already representing the estate, and it would be improper for the county attorney to handle the investigation while the deputy continued that representation.

The committee acknowledged that "appearance of impropriety" is no longer an express part of the rules but concluded that, on these facts, the public would almost certainly believe its interests were unprotected. It found that terminating the office-sharing arrangement would not cure the problem, because the conflict existed once the county attorney took office and the estate could claim he had access to its confidential files during the office-sharing period. The county attorney would likely have to appoint a special prosecutor.

Currency note

This opinion was issued in 1991, 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 Treat this page as historical context, not current guidance.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: Are an office-sharing county attorney and his deputy treated as a firm for conflicts?

A: The opinion treats their relationship as analogous to the association of lawyers in a firm under Rule 1.10.

Q: Can the county attorney just end the office-sharing arrangement to fix the conflict?

A: No. The opinion concludes the conflict existed once the county attorney took office, so terminating the arrangement does not resolve it.

Q: What is the practical result of the conflict?

A: The opinion states the county attorney will likely have to appoint a special prosecutor to conduct the investigation.

Background and rules framework

The opinion interprets Montana Rule of Professional Conduct 1.10 (imputed disqualification within a firm; Model Rule 1.10) and the then-current Rule 1.17 on part-time government lawyers (analogous to Model Rule 1.11 on government conflicts). It notes that the former "appearance of impropriety" standard is no longer an express part of the rules.

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 1.10 (imputed disqualification) / Model Rule 1.10
• Mont. R. Prof. Cond. 1.17 (part-time government lawyer) / Model Rule 1.11

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/910604.pdf

Original opinion text

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

Ethics Opinion
QUESTION PRESENTED: Can a present county attorney who has been handling an estate of a deceased person since before his county attorney appointment conduct a criminal investigation involving the deceased person? The county attorney shares his office with a part-time deputy county attorney, who had begun the investigation before the present county attorney was elected.

ANSWER: No.

ANALYSIS: It is our opinion that given the relationship between the present county attorney and his deputy, it would be improper for the county attorney to conduct or coordinate the criminal investigation involving the deceased person. The relationship between the county attorney and his deputy is certainly analogous to the association of lawyers in a firm. [See Rule 1.10.] While perhaps not directly on point, Rule 1.17 provides:

An attorney employed by a department of the State of Montana or municipality on a part-time basis shall not accept other employment during the course of which it would be possible to use or otherwise rely on information obtained by reason of government employment that is injurious, confidential or privileged and not otherwise discoverable.

Clearly, it would have been improper for the deputy to agree to represent the estate after he became a deputy county attorney. In this case, however, he was already representing the estate when he became the deputy county attorney. Likewise, it would be improper for the county attorney to handle the investigation while his deputy is representing the estate. Although "appearance of impropriety" is no longer an express part of the Rules of Professional Conduct, it is our opinion that under the circumstances set forth, the public will almost certainly conclude that its interests are not being protected unless the investigation is thoroughly and promptly concluded, regardless of the cost. The county attorney will likely have to appoint a special prosecutor.

Terminating the office sharing arrangement will not resolve the problem. The conflict existed once the county attorney took office, and if the county attorney pursues the investigation, the estate could certainly claim that the county attorney had access to its confidential files while the office-sharing arrangement was in existence.

THIS OPINION IS ADVISORY ONLY