Must a defense firm withdraw from a criminal case when a former assistant district attorney who prosecuted the case joins the firm, even if he agrees not to work on it?

Plain-English summary

The Committee was asked whether a defense attorney could keep representing a client when, after a trial and appeal that produced a reversal and remand for a new trial, a former assistant district attorney who had participated extensively in the prosecution and appeal joined the defending attorney's firm as a partner or associate, intending not to participate in further developments of the case.

The Committee concluded that the defense attorney should not continue the representation. It applied EC 9-3, which provides that after a lawyer leaves public employment he should not accept employment in a matter in which he had substantial responsibility, because doing so gives the appearance of impropriety even if none exists. It then applied DR 5-105(D), under which a lawyer's required disqualification is imputed to every partner and associate of his firm. Reading the two together, the Committee found that continuing the defense after the former prosecutor joined the firm would leave the public with an appearance of professional impropriety in violation of Canon 9, and that the former prosecutor's promise not to participate did not cure the problem.

Currency note

This opinion was issued in 1974, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Successive conflicts involving former government lawyers are now governed by Texas Rule 1.10 and ABA Model Rule 1.11, and imputation among firm lawyers by Texas Rule 1.06(f) and Model Rule 1.10, both of which permit screening in circumstances the 1974 Code did not recognize. 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 Treat this page as historical context, not current guidance.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: Did it matter that the former prosecutor agreed not to work on the case?

A: No. The Committee concluded that the agreement not to participate did not cure the problem, because DR 5-105(D) imputed the former prosecutor's disqualification to the whole firm.

Q: Which provisions did the Committee rely on?

A: EC 9-3 (a lawyer should not accept employment in a matter in which he had substantial responsibility in public office) and DR 5-105(D) (one lawyer's disqualification is imputed to all partners and associates), read together against the appearance-of-impropriety concern of Canon 9.

Q: What was the underlying concern?

A: The Committee concluded that continuing the defense after the former assistant district attorney joined the firm would leave the public with the appearance of professional impropriety, even if no actual impropriety existed.

Background and rules framework

The opinion interprets DR 5-105(D) (imputed disqualification within a firm) and EC 9-3 (a former public lawyer declining matters in which he had substantial responsibility) of the former Texas Code of Professional Responsibility, framed by the appearance-of-impropriety principle of Canon 9. The modern analogs are Texas Rule 1.10 and ABA Model Rule 1.11 (former government lawyers) and Texas Rule 1.06(f) and Model Rule 1.10 (imputation within a firm).

Citations and references

Rules of Professional Conduct:

• MR 1.11 (special conflicts for former government officers and employees), as the modern analog
• MR 1.10 (imputation of conflicts within a firm), as the modern analog
• DR 5-105(D); EC 9-3; Canon 9 (former Texas Code of Professional Responsibility)

See also

• TX Ethics Op. 538: Newly Elected DA Prosecuting a Former Client
• TX Ethics Op. 419: Partners or Associates of a County Attorney Defending Criminal Cases
• TX Ethics Op. 441: Domestic Relations Office Conflict and Screening of Colleagues

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-367/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_367.pdf

Original opinion text

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

QUESTION PRESENTED

Should an attorney represent a client if, after trial and appeal which results in a reversal with a remand for a new trial and a former Assistant District Attorney, who participated extensively in the prosecution and appeal, joins the defending attorney's firms as an associate, but who does not intend to participate in subsequent developments in the case?

CONFLICT OF INTERESTS

An attorney should not continue to represent a client after trial and appeal which results in a reversal and remand for a new trial if a former Assistant District Attorney, who participated extensively in the prosecution and appeal of such case, joins the attorney's firm either as a partner or an associate, even though such former Assistant District Attorney agrees not to participate in the subsequent developments of the case.

DR 5-105 D and EC 9-3

Ethical Consideration 9-3 of the Code of Professional Responsibility provides "after a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists." Disciplinary Rule 5-105 (D) of the Code of Professional Responsibility provides "if a lawyer is required to decline employment or withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment." The continuation of the same defense counsel in representing the accused after he has become associated with the former Assistant District Attorney that handled the prosecution in the first trial would leave to the public the appearance of professional impropriety in violation of Canon 9. Accordingly, the attorney should not continue to represent the defendant in such a case.

Tex. Comm. On Professional Ethics, Op. 367 (1974)