May a former prosecutor who resisted a defendant's insanity defense later represent that defendant, in private practice, in a proceeding to be restored to competency?

Plain-English summary

The committee was asked whether an attorney who, as a member of the public prosecutor's staff, had assisted in prosecuting a defendant acquitted on insanity grounds and had resisted that defense on the State's behalf could, on returning to private practice, accept employment by the former defendant in an action for restoration to competency. It quoted Canon 36, which provides that a lawyer who has held public office or been in public employ should not, after retirement, accept employment in connection with any matter he investigated or passed upon while in that office or employ.

The committee acknowledged the apparent counter-argument: having once resisted the defendant's commitment, the lawyer might seem not precluded from later being employed to procure restoration. But it concluded that, although a close question, Canon 36 as construed by the ABA Committee on Professional Ethics precluded the former State's Attorney from accepting the employment. It quoted ABA Opinion No. 134, that a lawyer retiring from public employ cannot utilize or seem to utilize the fruits of former professional relationships in subsequent private practice involving a matter investigated or passed upon by himself or others on the public legal staff while he was identified with it.

The committee added a practical reason. In opposing the commitment, the former State's Attorney may have acquired information he could use in the restoration proceedings; and because the burden of opposing restoration might fall on public officials, he could find himself not only in violation of Canon 36 but possibly in violation of Canon 6, which prohibits representing adverse interests, even though restoration is sometimes almost an ex parte proceeding.

Currency note

This opinion was issued in 1963, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The treatment of former government lawyers and successive conflicts is governed today by different, more detailed rules. Treat this page as historical context, not current guidance.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: Why was the former prosecutor barred from the restoration case?

A: The committee read Canon 36 to bar a lawyer from later employment connected with a matter he passed on in public office. Having resisted the defendant's insanity defense and possible commitment, the lawyer could not later be employed in the related restoration proceeding.

Q: Did it matter that restoration is sometimes an almost ex parte proceeding?

A: The committee noted that point but found it did not save the arrangement. It reasoned the burden of opposing restoration might fall on public officials, so the lawyer could be on the other side of the same interests he formerly served, implicating Canon 6.

Q: What ABA authority did the committee rely on?

A: ABA Opinion No. 134, which says a lawyer leaving public employ cannot utilize or seem to utilize the fruits of former professional relationships in private practice involving a matter investigated or passed on by himself or others on the public legal staff.

Background and rules framework

The opinion applied Canon 36 of the Canons of Professional Ethics (no post-retirement employment connected with a matter handled in public office) and Canon 6 (the bar on representing adverse interests), both adopted in Oklahoma, to a former prosecutor's proposed representation of a former defendant. It relied on ABA Opinion No. 134. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 6 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): prohibits the representation of adverse interests.
• Canon 36 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): a lawyer who held public office should not later accept employment connected with a matter he investigated or passed upon while in office.

Other opinions cited:

• ABA Opinion No. 134: a lawyer retiring from public employ cannot utilize or seem to utilize the fruits of former professional relationships in subsequent private practice involving a matter handled by the public legal staff.

See also

• Okla. Bar Ethics Op. 215: Acting county attorney maintaining a private practice
• Okla. Bar Ethics Op. 199: Assistant county attorney representing a beer-license applicant
• Okla. Bar Ethics Op. 200: City attorney's firm appearing before the city council

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-222/

Original opinion text

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

Adopted November 15, 1963

INQUIRY

A member of the Bar has made the following inquiry:

“May an attorney who as a member of the staff of the public prosecutor assisted in the prosecution of a defendant who was acquitted on the grounds of insanity and who in behalf of the State resisted such defense, upon return to private practice accept employment by the former defendant in an action for restoration to competency?”

OPINION

Canon 36 of the Canons of Professional Ethics provides in part as follows:

“A lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ.”

Compliance with this Canon would prohibit the former State’s Attorney from representing this defendant in defense of the alleged crime for which he originally attempted to secure conviction. It might appear that having once resisted commitment of this defendant, he should now not be precluded from being employed by the defendant to procure restoration to competency. However, it is felt that, although this is a close question, compliance with Canon No. 36 as construed by the Committee on Professional Ethics of the American Bar Association precludes the former State’s Attorney from accepting employment in this instance.

In Opinion No. 134, the American Bar Association Committee states:

“A lawyer retiring from public employ cannot utilize or seem to utilize the fruits of the former professional relationships in subsequent private practice involving a matter investigated or passed upon either by himself or others of the public legal staff during the time he was identified with it. …”

In this instance, the former State’s Attorney in opposing the commitment of the defendant may have acquired information which he could utilize in connection with the restoration proceedings. Even though a restoration proceeding is sometimes an almost ex parte proceeding, the burden of opposing such restoration might well fall upon public officials, and the former State’s Attorney would find himself not only in violation of Canon 36, but possibly in violation of Canon 6 which prohibits the representation of adverse interests.