Can a private lawyer appointed as a special deputy county attorney to prosecute one matter keep representing criminal defendants elsewhere in Utah?

Plain-English summary

A private practitioner was to be appointed a special deputy county attorney with authority to investigate and, if warranted, prosecute alleged misconduct by certain public officials. The Committee was asked whether that lawyer, or his firm, could continue representing criminal defendants during the appointment. The Committee concluded he could not.

The opinion rested on two independent grounds. First, Utah statutes (§§ 17-18-1(9) and 17-18-1.5(7)(a)) already barred a county attorney from representing criminal defendants anywhere in the state, and the Committee found it unlikely that bar could be circumvented by appointing a deputy or special deputy. Second, even setting the statutes aside, the Committee held the conduct would violate Rule 1.7(a). Applying the reasoning of its earlier Opinion No. 126, the Committee explained that a criminal defendant's interests are almost by definition adverse to the sovereign, and that a prosecutor's representation of a criminal defendant may be obstructed by unconscious influences, so a person who undertakes to represent the sovereign in criminal matters should not represent criminal defendants in any jurisdiction in Utah. The opinion noted that Opinion No. 126 allows a narrow exception for some appointed (not elected) city attorneys who have no prosecutorial functions, but found that exception unavailable here because the special deputy was appointed precisely to prosecute. Finally, the Committee held that Rule 1.10(a) imputed the special deputy’s disqualification to every member of his law firm for the duration of the appointment.

Currency note

This opinion was issued in 1998, before the Utah State Bar's adoption of the 2005 revisions to the Rules of Professional Conduct (the Ethics 2000-based amendments approved by the Utah Supreme Court on September 29, 2005). 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 Treat this page as historical context, not current guidance.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: Does accepting a part-time or single-matter prosecutor role bar a lawyer from criminal defense work?

A: Under this opinion, yes, for a special deputy county prosecutor. The Committee concluded that a lawyer appointed to prosecute even a single matter could not represent criminal defendants in any Utah jurisdiction while the appointment lasted.

Q: Did the conflict extend to the prosecutor’s law firm?

A: Yes. The opinion concluded that Rule 1.10(a) imputed the disqualification to every partner and associate in the special deputy’s firm during the appointment.

Q: Could the client just consent to the conflict?

A: The opinion treated this as a conflict that could not be cured by consent. Following Opinion No. 126, it reasoned that no lawyer could reasonably believe the dual role would not adversely affect the defense representation, so the Rule 1.7(a) consent path was unavailable.

Background and rules framework

The opinion interpreted Utah Rule of Professional Conduct 1.7(a) (then prohibiting representation directly adverse to another client absent a reasonable belief the representation would not be adversely affected and client consent) and Rule 1.10(a) (imputation of conflicts within a firm), corresponding to ABA Model Rules 1.7 and 1.10. It also relied on Utah Ethics Advisory Opinion No. 126 and cited the Utah criminal-conflict statutes. Because the opinion predates the 2005 Utah revisions, the Rule 1.7 framework it applied is the pre-Ethics 2000 version.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / Utah RPC 1.7(a) (concurrent conflict; directly adverse representation)
• MR 1.10 / Utah RPC 1.10(a) (imputation of conflicts within a firm)

Statutes:

• Utah Code Ann. §§ 17-18-1(9)(a), 17-18-1.5(7)(a), 17-18-1.7(6)(c) (1995)
• Utah Code Ann. § 17-16-7 (1995)

Cases:

• State v. Brown, 853 P.2d 851 (Utah 1992), unconscious-influence concern for prosecutors
• Goodson v. Peyton, 351 F.2d 905 (4th Cir. 1965), same

Other opinions cited:

• Utah Ethics Advisory Op. No. 126 (1994): a city prosecutor may not represent criminal defense clients in any jurisdiction

See also

• Utah Ethics Op. 98-01: Prosecutor in Private Civil Practice Against a Suspect
• Utah Ethics Op. 06-01: Government Pro Bono for Victims, Then Prosecuting
• Utah Ethics Op. 13-04: Waiving Ineffective Assistance in a Plea Agreement

Source

• Landing page: https://www.utahbar.org/ethics-opinions/1998-04/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/1998-04.pdf

Original opinion text

Best-effort transcription from a two-column PDF, reassembled in the opinion's own paragraph order. Minor errors may remain; the linked PDF is authoritative.

USB EAOC Opinion No. 98-04

Utah State Bar Ethics Advisory Opinion Committee

Approved April 17, 1998

Issue: May a private practitioner who has been appointed as special deputy county attorney to investigate and prosecute a single matter continue to represent criminal defendants in any jurisdiction in Utah?

Opinion: No. Even assuming such conduct is permitted by Utah statute, Rule 1.7(a) of the Utah Rules of Professional Conduct and the reasoning of Utah Ethics Opinion No. 126 prevent a special deputy county attorney from representing criminal defense clients in any jurisdiction in the State. In addition, Rule 1.10 prohibits any member of the special deputy's law firm from representing criminal defendants in any jurisdiction in the State during the period of the appointment.

Analysis: A county attorney proposes to appoint a special deputy county attorney. The appointment would authorize the special deputy "to investigate and take whatever action, if any, you deem appropriate" regarding alleged misconduct by certain public officials. We have been asked whether the attorney appointed as special deputy or his law firm may continue to represent criminal defendants during the tenure of the special deputy's appointment. Before we turn to the Utah Rules of Professional Conduct, we note that Utah statutes directly prohibit a county attorney from representing criminal defendants in any jurisdiction within the state. (fn1) Although the elected county attorney is authorized by statute to appoint deputies as necessary to fulfill the requirements of the position, (fn2) these statutes do not provide that deputies or special deputies are exempt from the prohibition against representing criminal defendants under §§ 17-18-1(9) and 17-18-1.5(7)(a). Indeed, we think it unlikely that this prohibition could be circumvented merely by the appointment of deputies or special deputies. Therefore, we believe that §§ 17-18-1(9) and 17-18-1.5(7)(a) directly control and prohibit the specially appointed deputy from representing criminal defendants any place in Utah. (fn3) Utah Rule of Professional Conduct 1.10 then imposes the same restriction on other members of his firm. However, even if the Utah statutes could be construed or were changed to allow a special deputy appointed to prosecute a particular matter to continue to represent criminal defendants, such conduct would violate the Utah Rules of Professional Conduct. In Opinion No. 126, (fn4) we concluded that: A city prosecutor may not represent a criminal defense client in any jurisdiction. A city attorney with no prosecutorial functions who has been appointed pursuant to statute may represent criminal defendants in any jurisdiction but that city. A city attorney with no prosecutorial functions who is retained on a contract basis may represent criminal clients in any jurisdiction, provided Rule 1.7(a) is satisfied. An attorney who is a partner or associate of a city attorney is bound by the same proscriptions as the city attorney. We based this opinion on Rule 1.7(a), which generally prohibits an attorney from representing directly adverse clients, and found that "a criminal defendant's interests are, almost by definition, adverse to the interests of the sovereign and the political subdivisions to which the sovereign has delegated law-enforcement authority." Rule 1.7(a) provides an opportunity for a client to consent to an otherwise conflicted representation, but only if the attorney could "reasonably believe" that the dual representation would not be "adversely affected." As we noted in Opinion No. 126, no attorney could reasonably believe she could represent a defendant charged with violation of the city's ordinances, when the attorney is also that city's prosecutor. Opinion No. 126 goes even further, however, and finds that the city attorney cannot reasonably believe she could represent criminal defendants in any jurisdiction in Utah. Adopting the reasoning of the Utah Supreme Court in State v. Brown (fn5) and the U.S. Court of Appeals for the Fourth Circuit in Goodson v. Peyton , (fn6) we found that a city prosecutor's representation of a criminal defendant may be obstructed by unconscious influences, and that those who undertake to represent the sovereign in criminal matters should not represent criminal defendants in any jurisdiction within the state. Although the special deputy would be acting as a county prosecutor and not as city prosecutor, the reasoning of Opinion No. 126 applies. The special deputy may not represent any criminal defendants in any jurisdiction in Utah while he is also acting as a special prosecutor for a county. Opinion No. 126 does offer an exception for some city attorneys who are appointed and not elected pursuant to statute, reasoning that appointed or contracted attorneys ar less likely than the elected city attorney to be associated with the interests of the city. The exception in Opinion No.

126 for appointed city attorneys is, however, limited to those who have no prosecutorial duties. In the case before us, the special attorney's appointment contemplates that he will file criminal charges if warranted by the investigation Thus, he has been appointed as a special prosecutor, albeit focused on certain individuals and certain conduct, and cannot make use of this exception. Finally, Rule 1.10(a) prevents any member of the special deputy's firm from representing criminal defendants in any jurisdiction within the State, since the special deputy himself is so prohibited. Footnotes

1. Utah Code Ann. §§ 17-18-1(9)(a), 17-18-1.5(7)(a); see also§ 17-18-1.7(6)(c) (1995).

2. Utah Code Ann. § 17-16-7 (1995).

3. The Committee does not render legal opinions, but it has the authority to cite applicable case law and statutes "as necessary to the opinion." Utah Ethics Adv. Op. Comm. Rules of Proc. § IV(a); see also id. § III(c)(2).

4. Utah Ethics Advisory Op. No. 126, 1994 WL 579846.

5. 853 P.2d 851 (Utah 1992).

6. 351 F.2d 905 (4th Cir. 1965).