Can a district attorney who is salaried as a full-time prosecutor (one not permitted to practice privately) also take private legal clients?

Plain-English summary

Opinion E-75-17 addressed whether a full-time district attorney could engage in private practice. The attorney had represented private clients and accepted fees, and his employer was aware of it and had not objected. The committee looked to the salary statute, which distinguishes counties where the district attorney "is permitted to practice law privately" (Section 59.471(2)) from those where the district attorney "is not permitted to practice law privately" (Section 59.471(3)), with a higher minimum salary for the latter.

The committee noted that where the position is part-time, it had little difficulty, pointing to prior memorandum opinions condoning private work by part-time district attorneys, city attorneys, and corporation counsel. But it stressed that the statute does not speak of "part-time" and "full-time" district attorneys; it speaks of district attorneys who are or are not permitted to practice law privately.

The committee concluded that the county has the right to all of its district attorney's professional time if he is employed and paid under Section 59.471(3), and that accepting private employment in that situation would have the appearance of professional impropriety in violation of Canon 9 of the Code of Professional Responsibility.

Currency note

This opinion was issued in 1975, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code's Canon 9, together with the district attorney salary statute (Section 59.471). The current counterpart most relevant to a prosecutor's competing private obligations is SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts of interest). 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 Treat this page as historical context, not current guidance.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: Can a full-time district attorney take private clients on the side?

A: Under this opinion, no, where he is paid as a prosecutor not permitted to practice privately. The committee concluded the county owns all his professional time and that private work would have the appearance of impropriety under Canon 9.

Q: Did it matter that his employer knew and did not object?

A: The committee recited that the employer was aware and had not objected, but it grounded its conclusion in the salary statute and Canon 9, not in the employer's acquiescence.

Q: How is a part-time district attorney treated differently?

A: The committee said part-time situations posed little difficulty, citing earlier memorandum opinions that condoned private work (including some criminal defense) by part-time district attorneys, city attorneys, and corporation counsel, subject to limits.

Background and rules framework

The opinion applied the former Code's Canon 9 (appearance of impropriety) together with the Wisconsin district attorney salary statute, distinguishing prosecutors statutorily permitted to practice privately from those who are not. The current counterpart is SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts of interest).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / SCR 20:1.7 (concurrent conflicts of interest); former Code Canon 9

Statutes:

• Wis. Stat. § 59.471(2), (3) (district attorney salaries; private practice)

See also

• WI Ethics Op. E-76-12: A City Attorney Taking Private Criminal Defense Work
• WI Ethics Op. E-81-3: Town Prosecutor Defense Work
• WI Ethics Op. E-76-11: An Assistant DA's Partners and Criminal Defense

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-75-17.pdf