Can a part-time special prosecutor also represent private clients adverse to the state, city, or county, and can the prosecutor obtain an advance blanket waiver of future conflicts from the state?

Plain-English summary

A lawyer in general private practice also serves as a special prosecutor in certain misdemeanor cases, representing the State of Oregon though paid by a city and at times coordinating with the county district attorney's office. The lawyer also has private clients who may be adverse to the state, city, or county in unrelated civil matters, in circumstances where the lawyer holds no confidential client information usable against the affected party. The opinion answers three questions: whether the lawyer may represent a private client adverse to the state, whether the lawyer may do so adverse to the city or county, and whether the lawyer may obtain a blanket future-conflict waiver from the state.

The opinion concludes the state is the lawyer's client when the lawyer appears as a special prosecutor, even though a city pays the lawyer and the lawyer may coordinate with the county; it notes Oregon RPC 1.8(f) and 5.4(c) on third-party payment and independence. Within government, the client may be a specific agency, a branch, or the whole governmental level, and it is largely for the lawyer and the government to define who the client is, as in private-entity representation. Representing a private client against the state in litigation or negotiation is adverse, but merely advising a client on structuring a transaction to minimize state taxes, or appearing before a state agency adjudicating a matter between the client and a third party, is not by itself adverse to the state.

On these facts, the opinion concludes any conflict from simultaneously representing the state in misdemeanor matters and private clients in unrelated civil matters is waivable under Oregon RPC 1.7(a)(1) and (b), because although the interests may be directly adverse, the lawyer would not have to contend for one client what the lawyer must oppose for the other; the lawyer may proceed with informed consent confirmed in writing. Because the city and county are not the lawyer's clients merely from the special-prosecutor role, representing private parties against them raises no RPC 1.7 conflict. Finally, nothing in Oregon RPC 1.7 prohibits a blanket or advance waiver from the state or a private client so long as the lawyer adequately explains the material risks and alternatives, but the lawyer must stay alert to situations not contemplated in the original disclosure (which require a fresh consent) and to nonwaivable conflicts (which require declining the new matter under Oregon RPC 1.16(a)(1)).

In practice

The opinion holds that, under the current Oregon rules, the special prosecutor's lone government client is the state, so adversity to the city or county is not a client conflict, and adversity to the state is a waivable conflict curable by written informed consent. Per the opinion, advance blanket waivers are allowed with adequate disclosure, but their reach is limited by unforeseen situations and by nonwaivable conflicts. Verify the current text of Oregon RPC 1.7, 1.8, and 5.4 before relying on any specific point.

Common questions

Q: Can a part-time special prosecutor represent private clients suing the state?

A: Yes, in unrelated matters. The opinion concludes the conflict is waivable under Oregon RPC 1.7(a)(1) and (b), so the lawyer may proceed with the affected clients' informed consent confirmed in writing.

Q: Does representing the state as special prosecutor make the city or county the lawyer's client too?

A: No. The opinion concludes the city and county are not the lawyer's clients merely from the special-prosecutor role, so representing private parties adverse to them raises no RPC 1.7 conflict.

Q: Can the lawyer get an advance blanket waiver of future conflicts from the state?

A: Yes, qualified. Per the opinion, nothing in Oregon RPC 1.7 prohibits a blanket or advance waiver if the lawyer adequately explains the material risks and alternatives, subject to fresh consent for unforeseen situations and declination of nonwaivable conflicts.

Q: When is something not "adverse" to the state?

A: The opinion gives examples: merely advising a private client on structuring a transaction to minimize state taxes, or appearing before a state agency that adjudicates a matter between the client and a third party, is not by itself adverse to the state.

Background and rules framework

The opinion interprets Oregon RPC 1.7 (current-client conflicts, waivable vs. nonwaivable), with Oregon RPC 1.8(f) (third-party payment), 5.4(c) (independence from a payor), and 1.16(a)(1) (declining a representation that would violate the rules), corresponding to Model Rules 1.7, 1.8, 5.4, and 1.13 on the government as client.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.7 / Model Rule 1.7 (current-client conflicts)
• Oregon RPC 1.8(f) / Model Rule 1.8 (compensation from a third party)
• Oregon RPC 5.4(c) / Model Rule 5.4 (third-party direction of judgment)
• Oregon RPC 1.16(a)(1) / Model Rule 1.16 (declining representation)

Cases:

• Gibson v. Johnson, 35 Or App 493, 582 P2d 452 (1978)
• In re Phelps, 306 Or 508, 760 P2d 1331 (1988)
• In re Thies, 305 Or 104, 750 P2d 490 (1988)

Other opinions cited:

• ABA Formal Ethics Op. No. 05-436 (advance waivers of conflicts)
• OSB Formal Ethics Op. No. 2005-85 (identifying the client)

See also

• OSB Ethics Op. 2005-14: Deputy DA Representing Private Parties
• OSB Ethics Op. 2005-85: Identifying the Client (Corporations, Partnerships)
• OSB Ethics Op. 2005-7: Lawyer as State Legislator, Lobbying

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-122.pdf