As a prosecutor I convicted a driver for a fatal driving-to-endanger charge. Now that I'm in private practice, the victim's father wants me to represent him in a civil suit against that same driver and the town over the same death. Can I take the case?

Plain-English summary

While employed as a prosecutor with the Attorney General's Department, the attorney prosecuted an individual, Mr. X, on a charge of driving to endanger, death resulting, after Mr. X struck and killed another individual in the Town of Gotham. A Gotham detective assisted in preparing and trying the case, and the attorney had access to police reports, full witness testimony, and Department of Transportation data on the road involved, all obtained through usual investigatory procedures and none of it privileged. Mr. X was convicted and, at the time of the inquiry, was appealing his conviction. After entering private practice, the attorney was approached by the father of the person who was killed, seeking representation in a civil action against several defendants, including Mr. X and the Town of Gotham, arising from the same death. The attorney asked the panel whether it would be proper to take the case.

The panel quoted Rule 1.11, "Successive Government and Private Employment," which bars a lawyer, except as law may otherwise expressly permit, from representing a private client in connection with a matter in which the lawyer participated as a public officer or employee, and which defines "matter" to include any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties. Applying that rule to the criminal prosecution the attorney had personally handled as a government prosecutor and the civil case arising from the same underlying death and naming the same defendant, the panel held that the attorney may not undertake representation of the civil case.

Currency note

This opinion was issued in April 1990, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.11 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Can a former prosecutor represent a private civil client in a case arising from the same facts as a criminal case the prosecutor personally handled?

A: Not under this opinion. The panel held that Rule 1.11 bars the attorney from undertaking representation of the civil case, because it arose from the criminal case in which he participated as a government employee.

Q: Does it matter that none of the information the attorney had access to as a prosecutor was privileged?

A: The opinion recites this fact, but Rule 1.11(a) as quoted bars representation in connection with a "matter" the lawyer participated in as a public employee regardless of whether the information involved was privileged; the bar is not framed as turning on confidentiality.

Q: What counts as the "same matter" for purposes of Rule 1.11?

A: Per the opinion, Rule 1.11(e) defines "matter" broadly to include any judicial or other proceeding, charge, accusation, arrest, or other particular matter involving a specific party or parties, which covers a civil case naming the same defendant arising from the same underlying criminal charge.

Background and rules framework

The opinion applies Rule 1.11 of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, barring a lawyer from representing a private client in connection with a matter the lawyer participated in as a public officer or employee, to an inquiry about a former prosecutor representing a civil plaintiff against the same defendant he had prosecuted criminally for the same underlying death.

Citations and references

Rules of Professional Conduct:

• MR 1.11 (successive government and private employment)
• RI RPC 1.11(a), 1.11(e), as adopted November 15, 1988

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• ABA Formal Op. 97-409: Conflicts of Interest: Successive Government and Private Employment
• RI EAP Op. 90-14: City Solicitor Position Conflicts Out Firm From Suing City

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2090-17.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
Opinion #90-17, Request #94
Issued April 18, 1990

An attorney seeks Panel advice as to whether he may properly represent a certain individual under the circumstances he describes.

The attorney advises the Panel that while he was employed as a prosecutor with the Attorney General's Department he prosecuted an individual (Mr. X) on a charge of driving to endanger, death resulting. The attorney explains that Mr. X struck and killed an individual in the Town of Gotham. He states that a Gotham detective assisted him in the preparation and trial of the case and that the attorney had access to police reports, the full testimony of witnesses and Department of Transportation (DOT) data concerning the road involved. The attorney indicates that all DOT data, witness names and police reports were obtained through the usual investigatory procedures and that none of the information was privileged. The attorney states that Mr. X was convicted and is now appealing his conviction.

The attorney explains that after he entered private practice the father of the individual who was killed approached him seeking representation in a civil action which the father wished to pursue against several defendants, including Mr. X, and the Town of Gotham. The attorney asks whether it would be proper to do so.

Rule 1.11, titled "Successive Government and Private Employment" provides, in pertinent part:

(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated as a public officer or employee.

(e) As used in this Rule, the term "matter" includes:

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties.

The Panel takes the position that the attorney may not undertake representation of Mr. B with regard to a civil case arising from a criminal case in which the attorney participated as a government employee.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.