Ezel / Ethics Opinions / OSB
OSB August 2005

Can a part-time deputy district attorney take private clients in matters connected to cases the office is prosecuting?

Short answer: No, while still in office. The opinion concludes a deputy DA may not represent a private party in a civil matter involving substantially the same controversy as a pending prosecution, under ORS 8.720 and Oregon RPC 8.4 and 1.11(d); after leaving office a former deputy DA may, with government consent where personally and substantially involved.

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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Plain-English summary

The opinion addresses two part-time deputy district attorneys. Deputy A, prosecuting a DUII, learns the injured victim needs counsel for a civil damages action against the criminal defendant. Deputy B, prosecuting a negligent-homicide case involving a married couple's deaths, is asked to probate the couple's estates but not to help with the wrongful-death action. A third question asks whether the answers change once the deputies leave for full-time private practice. The conclusions are no, no, and yes-qualified.

Although ORS 8.726 lets deputy DAs in certain counties practice part-time, ORS 8.720 bars a district attorney from taking a fee from a private person for services in a criminal action and, during a prosecution, from acting as attorney for either party in a civil matter involving substantially the same controversy. The opinion reads this with Oregon RPC 8.4(a)(2) (criminal acts reflecting on fitness) and RPC 1.11(d)(2) (a current public officer may not use the position to influence a tribunal for a client or accept value to influence official action).

Applying these, the opinion concludes Deputy A's simultaneous prosecution and civil representation would violate ORS 8.720, RPC 8.4(a)(2), and RPC 1.11(d)(2)(ii), with a possible 1.11(d)(2)(iii) violation. Deputy B's probate is a closer question, but the opinion finds at least an ORS 8.720 and RPC 8.4(a)(2) violation because the homicide and wrongful-death matters involve substantially the same controversy. For former government lawyers the restrictions apply less severely; under RPC 1.11(a)(2), Deputy A would need the agency's written consent to handle the private action where personally and substantially involved, while the opinion does not believe 1.11(a)(2) would apply to Deputy B.

In practice

The opinion holds that, under the Oregon rules and statutes as they stood at the time, a sitting deputy DA's outside civil work is barred where it overlaps the substantially-same controversy as a prosecution. The opinion treats the post-employment restrictions as lighter, turning on whether the former deputy holds relevant confidential government information and, for matters the deputy handled personally and substantially, on obtaining the agency's written consent under RPC 1.11(a)(2).

Common questions

Q: Can a part-time deputy DA represent a victim civilly while the office prosecutes the case?

A: No. The opinion concludes this violates ORS 8.720, RPC 8.4(a)(2), and RPC 1.11(d)(2) because the civil matter involves substantially the same controversy as the prosecution.

Q: Can a deputy DA probate estates connected to a pending homicide prosecution?

A: No. The opinion concludes the probate would at least violate ORS 8.720 and RPC 8.4(a)(2) because the homicide and wrongful-death matters involve substantially the same controversy.

Q: Does leaving the DA's office change the answer?

A: Yes, qualified. The opinion concludes the restrictions apply less severely to former government lawyers, but RPC 1.11(a)(2) requires the agency's written consent for matters the lawyer handled personally and substantially, and confidential government information can still bar a representation.

Background and rules framework

The opinion interprets Oregon RPC 1.11 (current and former government lawyers), specifically the current-officer limits in 1.11(d)(2) and the former-officer consent requirement in 1.11(a)(2), with RPC 8.4(a)(2) (criminal acts). These track Model Rules 1.11 and 8.4. The governing statutes are ORS 8.720 and ORS 8.726.

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 1.11(a)(2), (d)(2) / Model Rule 1.11 (government lawyers)
  • Oregon RPC 8.4(a)(2) / Model Rule 8.4 (criminal acts)

Statutes:

  • ORS 8.720; ORS 8.726 (district attorneys and part-time private practice)

Cases:

  • In re Snyder, 276 Or 897, 559 P2d 1273 (1976)
  • In re McMahon, 266 Or 376, 513 P2d 796 (1973)

See also

Source

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